Would you sign this NDA?
June 23, 2021 7:55 PM   Subscribe

A recruiter wanted to talk to me about a software job (I'm not looking but I don't mind talking occasionally) and before our call they sent an NDA for me to sign, about a dozen long paragraphs of legalese. It all seemed a bit much, but one paragraph in particular stood out to me (read it below the fold). To me it seems literally impossible to comply with, since I had zero knowledge of the company, but I wonder what other people think. I did not sign, btw.

"Recipient will also attach hereto as Exhibit A, a list describing all inventions, discoveries, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks and trade secrets, whether or not patentable or registrable under patent, copyright, or similar laws that were invented, created, conceived, developed or reduced to practice in whole or in part by Recipient prior to Recipient's execution of this Agreement and to which Recipient has any right, title, or interest, and which relate in any way to the Company Group's current or proposed future businesses, products, services, technologies, or research and development ("Prior Inventions"); or, if no such list is attached, Recipient represents and warrants that there are no such Prior Inventions. If Recipient incorporates into or uses in connection with any product, process, service, technology, or other work provided to the Company Group any Prior Invention, Recipient hereby grants to the Company Group a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, worldwide license, with the right to grant and authorize sublicenses (through multiple tiers), to make, have made, modify, create derivative works of, use, copy, display, perform, distribute, import, offer for sale, sell or otherwise exploit such Prior Invention for any and all purposes, without limitation." (Any typos are mine.)
posted by mpark to Work & Money (31 answers total) 1 user marked this as a favorite
I am not a lawyer, but there is ZERO chance I sign that document that includes that paragraph prior to having a big discussion about the job, the upside for me, etc.

Your instincts are correct.
posted by AugustWest at 7:59 PM on June 23, 2021 [29 favorites]

It sounds like anything you invent or works you create while working for the company, that in any way relate to the company's business, will be considered the property of the company. Therefore they want you to list up front any such works or inventions that pre-date your employment with the company. This presumably protects you from them making a claim, if you can show that it existed pre-employment; where it could work against you is if you forget or neglect to put something on the list.

I would not even consider signing that until we were at the point of a potential job offer.
posted by Serene Empress Dork at 8:05 PM on June 23, 2021 [23 favorites]


Just cross it out. Tell the recruiter you don't have a list handy of all your prior inventions and that you're not about to start making representations about it or signing away such IP as you may or may not own, without a serious review. Damned nonsense.

(ETA - you can be sure this clause will be in any contract they do offer you, and at that time you'll want to give it serious thought.)

(ETA - if you have no prior work, ie everything you've ever coded has been work for hire for your other jobs and not yours, then this paragraph is irrelevant.)
posted by fingersandtoes at 8:12 PM on June 23, 2021 [6 favorites]

And, no. Not without a job offer or expressed information regarding work.

I almost asked if this was a real company.
posted by firstdaffodils at 8:13 PM on June 23, 2021 [2 favorites]

Best answer: For an interview/informational call? This is moronic, and the recruiter is either a moron or being sent astray by moronic executives.

It’s not just bad, it’s embarrassingly bad.

I work in BigTech now, and would straight-up laugh in the face of anyone who asked me to sign this kind of thing at this stage. Like, hahahahaha, best of luck in your search.
posted by aramaic at 8:15 PM on June 23, 2021 [26 favorites]

I think this is a nonstarter. An NDA prior to a call about a job should be pretty simple and straightforward. I don’t think you need an attorney; just let the recruiter know that you find this unreasonable.
posted by mr_roboto at 8:15 PM on June 23, 2021 [11 favorites]

Serene Empress Dork is correct about the purpose of that paragraph.

But, being asked to sign something like this before an interview is ridiculous. There are lots of other tech jobs out there that don't make you jump through crazy legal hoops just for the privilege of speaking with them.
posted by mekily at 8:16 PM on June 23, 2021 [4 favorites]

I have signed an NDA like that, although I’m pretty sure it was later in the process, like everyone else has said. I’ve also had the person giving it to me to sign tell me that it’s not something they’ve ever actually enforced. Not that I’d take their word for it; I just didn’t create much IP at the time, so it was a moot point for me.

There are two main points: one, that you’re not stealing the company’s IP, and two, that you’re not running a side hustle that could interfere with your work with the company. But the latter isn’t a concern yet at the first conversation, and there are more precise ways to accomplish the former.

If I had to guess, I’d say that someone somewhere in the HR process used to work at a big prestigious company that included this clause in a contract, and thought that if big prestigious companies do it then everyone should. That is its own red flag.

I would at least suggest mentioning your concerns to the recruiter.
posted by kevinbelt at 8:22 PM on June 23, 2021 [2 favorites]

I’d ask the recruiter innocently to confirm the company had sent the correct form because “paragraphs a-l are fine but attachment 1 seems more appropriate for the acceptance stage than for a preliminary interview.”

They may have made a mistake or they may be overzealous but cool if you don’t sign.

If I got this after the offer acceptance stage I might ask for a few improvements, carveouts, and language clarifications, but I’d sign.
posted by kapers at 8:34 PM on June 23, 2021 [10 favorites]

When first talking with a company who is recruiting you for your particular expertise, there's an odd gray between what you know and what they know. They may believe they've invented something and want to protected it. And you may have developed thinking on the same thing independently, and want to keep your options open.
How can both side protect themselves? It's tricky, and ending up in court is messy. Companies often punt this issue to their counsel, who then comes up with something ridiculous-sounding legalese like this that pushes an impossible amount of work on to you, with any slip up going to the Company's advantage.

Recognize that this a step in a negotiation, and that you have options. You took one by passing. Another is to counter with, "I'm interested in learning more, but not under these conditions. Can we take a half step?" If they decline, they're telling you something.

A further step is to politely decline some conditions. (And here it's worth checking with someone who is an attorney, and who works in your area, because what works where I am may not apply where you are.) "I am not at liberty to disclose trade secrets I've developed for past employers. How would you suggest moving forward" pushes the issue back in to their court, and also signals that you take the issue seriously. Then see what happens.

It's also not entirely uncommon to keep a list of "Inventions and works of original authorship" alongside one's resume, to be used in situations like this.
posted by dws at 8:40 PM on June 23, 2021 [4 favorites]

Signing something before an interview with a recruiter (so not even the actual employer) is just an absolute nonsense. I'd be pretty hesitant to sign anything even with the employer, unless I had my useful Pocket Lawyer with me on the day, which I wouldn't, because they don't exist.
posted by turbid dahlia at 8:51 PM on June 23, 2021 [1 favorite]

I am a lawyer and the chances of me signing that just so I could talk with a recruiter would be zero.
posted by Salamander at 9:39 PM on June 23, 2021 [11 favorites]

I clicked through expecting to say "yeah, sure, you sign NDAs for interviews at big tech. It sucks but that's the way the world is." But then I read the actual clause in yours. Hahaha no. That's not reasonable, and it's not customary in my experience. It's barely an NDA. It's an IP ownership clause, and its inclusion in an NDA is deranged.
posted by caek at 9:45 PM on June 23, 2021 [7 favorites]

edit: I've signed NDAs or seen NDAs presented for work before. This is a frankenDA.
posted by firstdaffodils at 9:54 PM on June 23, 2021 [3 favorites]

Nthing that no, I wouldn't sign. Ideas are cheap and whatever idea they have is definitely not worth the hassle of an NDA like that.
posted by Aleyn at 10:11 PM on June 23, 2021 [1 favorite]

It sounds like anything you invent or works you create while working for the company, that in any way relate to the company's business, will be considered the property of the company. Therefore they want you to list up front any such works or inventions that pre-date your employment with the company. This presumably protects you from them making a claim, if you can show that it existed pre-employment; where it could work against you is if you forget or neglect to put something on the list.

No, it's not about protecting you, it's about requiring you to license any preexisting IP if you incorporate it in any way into work you do for the company. And that's the narrowest reading. An aggressive lawyer would argue that even having some chron job notification come to an email you checked on a work-provided phone requires licensing.

You can be pretty confident that when a company hands you an NDA, there will be fuck-all in it to protect you.
posted by praemunire at 10:31 PM on June 23, 2021 [13 favorites]

There's generally two types of companies that put over the top stuff into NDAs and employment contracts. Those that are clueless and copy a bunch of boilerplate legalese that they think sounds impressive and correct because they're too cheap to hire a lawyer. And those that do know what they're doing and try for an over-the-top power grab intentionally.

Neither type is very fun to work with or for.

To your question, I would not sign that unless they were willing to pay me my consulting rate up front to do all of that and even then it would greatly decrease my interest in even considering them. But I'm in the position to be picky. Earlier in my career when I had less leverage, I dealt with a company in the first category. In that case, it was a non-compete clause that as written would have basically banned me from working at all in my industry in the state for several years. When I pointed out that this was not really reasonable, they amended it to what the said they intended to say in the first place without argument.
posted by Candleman at 10:31 PM on June 23, 2021 [4 favorites]

IANAL but I’m guessing that that NDA would be unenforceable in California. That doesn’t mean that an asshole company wouldn’t try though.
posted by rdr at 10:39 PM on June 23, 2021 [1 favorite]

A couple of people above seem to be interpreting this clause on the misunderstanding that it appears in an employment agreement.

To be clear, OP was asked to sign this before talking to a recruiter about a job they don't have.

Enforceability notwithstanding, NDAs are (sadly) typical and unavoidable for interviews at big tech. Clauses like this are (sadly) common and only sometimes avoidable for employment agreements at big tech (including the requirement to enumerate everything you created before you joined the company). But I have never seen a clause like this in an non-employee NDA. That's what makes it unusual.

Presumably it's meant to cover the possibility of an outside person learning proprietary information during the interview process. That's inside the scope of a typical NDA in my experience. But reassigning ownership of IP is not!
posted by caek at 11:03 PM on June 23, 2021 [1 favorite]

To my point about this being the work of someone pretending to be a lawyer and cutting and pasting stuff, the whole thing is very similar to these examples. I would bet that the person who did it didn't understand the differences between an NDA and an employment contract or that some bigwig thought it sounded great in the employment contract and said that it should be added to all employment related documents.

The statement itself isn't actually outrageous - it's not an IP power grab like some I've seen, it's just saying let us know what you've created and if you incorporate something that you've previously created into the work you do for us, you have to let us use it without limitation, which isn't unreasonable for most people. You'd only really need a carve-out if you'd created a substantial work that they were in effect hiring you to integrate into their products or if you had IP in an open source library that they wanted you to use in their products but that you didn't have the sole rights to so you couldn't actually abide by the terms. And again, I prefer not to work for companies that think that employment law is a good area to cheap out on. It's the phase of the conversation they're presenting this that's problematic, not the concept that a company would ask for this at some point.
posted by Candleman at 11:32 PM on June 23, 2021 [2 favorites]

I'm not a lawyer but to me that language sounds more like something that would go in an employment contract rather than be part of an NDA in the process of exploring and employment opportunity.
posted by Dansaman at 11:59 PM on June 23, 2021 [1 favorite]

Regardless of whether the NDA is a piece of clueless copypasta on the part of an office droid or not, if you sign it you are putting yourself at risk for any future company attorney to use it against you and your IP.

True story...At a studio I used to work at, management showed up one day with a paper they wanted the art staff to sign. It was a basic agreement stating that any work we did for the company was property of the company. Not a problem. However, in the way it was worded they could also claim any of our own personal work or side jobs done on our own time and at our homes. When this was pointed out to management, they assured us they would never do such a thing. Nevertheless, the art staff refused to sign anything until the language was changed.

All I'm saying is, if the legalese reads as if they can claim ownership of your work in any way possible, DO. NOT. SIGN.
posted by Thorzdad at 4:55 AM on June 24, 2021 [2 favorites]

I've been on both sides of this (roughly speaking). Don't sign it.
posted by fake at 6:13 AM on June 24, 2021 [2 favorites]

This is absolutely not standard practice and I would not work with this recruiter under any circumstances.
posted by goingonit at 7:13 AM on June 24, 2021 [1 favorite]

Do not sign NDA's for initial conversations, if you get far down the road it's not unusual to sign an NDA as you progress through the process and before offer, and when you do they should be crafted to protect both parties, not just one.
posted by iamabot at 8:04 AM on June 24, 2021 [1 favorite]

These people are not smart enough to take care of you even if they wanted to. I bet all their guppies don't make it past the second week.
posted by amtho at 8:10 AM on June 24, 2021 [3 favorites]

Be prepared that the recruiter will just walk away from you as being too difficult to present to the company.

But I'll bet you a donut that you can find the company directly from the recruiter's job description. Lots of them cut and paste directly from the Word document.
posted by JoeZydeco at 8:29 AM on June 24, 2021 [1 favorite]

Yeah that's a clause from an employment contract. I've seen (and signed) them in that context. I absolutely would cross it out and/or just push back on it for an interview.
posted by restless_nomad at 9:26 AM on June 24, 2021 [1 favorite]

What I think happened is that the recruiter is kind of new and/or was provided the wrong NDA by the employer. As you said, this NDA literally makes no sense for an interview. It's also not an NDA, because the clause you linked has nothing to do with not disclosing company secrets. So I imagine the recruiter was provided the interview NDA and the pre-employment documents and either gave you the wrong one, or figured if you get the job you'll have to sign it anyway so gave you the long one. Or the company wanted an NDA for interviews, googled for one and chose the first they saw without reading or thinking about it.

I would sign it because:
1. It's completely unenforceable, and not just in California. If you don't get the job the language quoted has no legal effect.
2. The inexperience of the interviewer and/or company expands the range of expected outcomes from the job. On one side they might lowball you and all other candidates and wonder why they aren't getting bites, however it could be an opportunity for a quick change in responsibility and a move up the career ladder if you're interested in that.
posted by hermanubis at 11:45 AM on June 24, 2021 [1 favorite]

Response by poster: Thanks, everyone! So many great answers. I limited myself to marking one best, else I would have marked them all.

Although I refused to sign, the recruiter did end up talking to me about the company in general terms but did not go into much detail (not that I cared). She also mentioned that she'd been getting some resistance to the NDA, especially the section from which I excerpted that paragraph. Maybe I should send her this thread :)
posted by mpark at 4:30 PM on June 24, 2021

Maybe you should.

Not only is she getting "some resistance", she's effectively filtering out the best candidates.
posted by amtho at 8:38 PM on June 24, 2021 [2 favorites]

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