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Non Disclosure Agreements in Interviews?
Rick asks: "I am interviewing for the first time in about 5 years. I have been asked by more than one prospective employer to sign a non-disclosure agreement for the interview. I have a problem with this as I don't feel they should be providing any sensitive information. Signing an NDA might make it more difficult to get employment elsewhere as another company working on the same product could be sued because they put me to work on it. I had two interviews where the NDA was requested. One had no problem and simply did not discuss their sensitive information. The other had no flexibility at all." I've always thought that the interview is where an employer and a potential employee feel each other out. If you ask for someone with a certain skill set and experience level, there should be a way to do this in an abstract manner and without revealing any details about project specifics (and unnecessary NDAs). Why has this changed?
"I asked that the NDA be amended to provide to me a list of the sensitive information that was covered during the interview. This was agreeded to by the first interviewer (in the lobby) and we began. About the time I met the fourth interviewer I was greeted by a small group of people from HR and the director of engineering who terminated the interview and escorted me out of the building. What experiences have others had in relation to the NDA for an interview? How do you handle this sort of thing?"
I've been to interview with GCHQ, one of Britain's largest and most secretive intelligence services. There was no requirement for NDAs, or even signing of the Official Secrets Act until we had been told we had got our jobs and the security vetting had been successful. For commercial entities to ask for NDAs at interview is just plain arrogant and stupid.
I don't see why people think an NDA at the interview is unusual. You, as a candidate, should want to know what you would be doing, what you'd be working on, what technology you would be using, before accepting any kind of job.
The appropriate time for the NDA is just before the intervioew turns from the general (is this guy a homicidal maniac, an idiot, or just not cut out to work within the culture here?) to the specifics of the job.
IANAL, but I don't think that's true...
Co. A makes you sign an NDA and offers you a job.
Co. B offers you a job with higher pay, etc..
Taking the job with the second company wouldn't result in legal action if you just took the job. You'd just get your ass sued if you ran over to them and said "look at this hot new tech. from company A!" and they used it...
The NDA is there precicely because you're getting more than one job offer (if they knew that you'd be working for them, they wouldn't need to protect their secrets from other companies, now would they?). It's just a formality so that they can tell you what you'd be doing, but other companies can't know.
-- Aaron Kimball
Potential businesses and good ideas are a dime a dozen. Unless your idea is patent pending or "truly" innovative, requiring potential employees to sign an NDA should be out of the question. Then, they should be used sparingly and with limited scope. I personally don't want to walk around providing copies of my signed NDAs to every perspective employeer for them to sign in a similar field. Would you?
Interview NDAs are just another good idea being mutilated by the truly business brain dead for the self-serving interest of a business. I wonder if they would actually hold up in court...
The first interview is supposed to see if there is a match between employeer and perspective employee. The second interview (or third), is when details should be discussed. If an NDA is absolutely required, the perspective should know this in advance, prior to walking into the interview. A copy of the NDA should be extended to the perspective as well for review. It should be limited to the scope of the interview and have an expiration period. And, they should not object to someone who brings their lawyer when they are trying to bind someone to a legal contract. Period.
If the employer is sure they have the right person and wish to further interview the perspective or plan to make an offer, they should extend the offer first (with a letter) with the provision an NDA is executed between all concerned parties. That shows intent by the business and leaves the perspective with the decision. Under no circumstance should the perspective be made to sign the agreement on the spot.
In a related situation, I had an interview a few years ago where I asked if I would be required to take any skills competancy tests (it was for a Macintosh/C++ programmer position). And, I was assured I would not. On the day of the interview, the person with whom I was to be interviewed by was not present, the person they did assign had not seen my resume and barely spoke comprehensible English. Then, they gave me the "test". I walked out of the interiew. The company, BTW, is not longer in business yet I am gainfully employeed. My current employer did ask that I sign a scope limited NDA after hire. And, they were upfront with this prior to my hire.
Isn't that exactly what Transmeta did when they wanted to hire Linus and the whole rest of their employees? I think that in certain occasions it is very smart to give people NDA's, because you can inform them much better about what they will be doing. I don't think it should be standard, but it should be something that you consider when the person interviewed might work on something new or cool, something that a competitor really might want to know about. Giving a person some sensitive information might just be that thing that might pull him/her over the line. Just like it did with Linus. I don't think he would have gone to Transmeta if they had said to him: "Look here, we're building a cool processor, but we won't tell you what you're going to do until you work for us". I don't really see the big problem here.
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In general, I won't sign an NDA that has a time limit of more than a year on it. That way, you don't have to worry about some problem from the distant past cropping up later.
Essentially, I have been asked to allow them to do the same investigation that the FBI did on me for a security clearance in the military. (They did not, however, ask me if I was gay.) In most cases I have found the requests to be quite unreasonable for the job that I am applying for.
What the fsck does my driving record have to do with a desk job that requires less than 5% travel? What right does a company that proudly loses millions of dollars per year have to my personal financial records? Why does my employer need to know that I broke my arm when I was 12?
Yet this information may not be public knowledge. It might even be a trade secret. What if it's a startup that hasn't gone public with their product yet? Or a manufacturer working on a new, secret version of something?
The only solution in this case is an NDA. How else can you judge the position/job?
Michael J.
Michael J.
Root, God, what is difference?
A lot of companies like to convince themselves they have the "newest thing". They're usually wrong. But they invest so emotionally in it that they become paranoid.
Solution: next time they ask, look incredously at them, then break into raucous laughter, shaking your head as you walk away.
--
Any company with an edge over its rivals will want to protect their own interests.
Equally, the NDA might be seen as a recruitment tactic. Imagine you sign an NDA, take the interview with Company A and get offered the job. You might also be tempted by Company A's main competitor (Company B) who are offering a higher salary or other benefits. Why would you put your own career at risk by taking the job with Company B if it could result in legal action? So you take the job with Company A instead. Rather than using golden handcuffs they could be considered to use legal handcuffs.
If someone feels bound to a particular company because of the legal ramifications of leaving to join a competitor, is that a form of bonded labor?
Rob.
Quoth the poster:
I will not dispute the scariness of the way things seem to be pointed; I'm just noting a little irony here... On the one hand, you have worries like this, about the future; on the other hand, look at the past! Not too long ago, the concept of having changed jobs was something like having a criminal in the family. Of course you sold your soul to your company! After all, you were obviously going to work for the same company throughout your professional life, and in all likelihood so would your children. It's recent times that have changed all that, and a lot of it is the tech industry. Is the industry really swinging back to the old company-town, like a pendulum? Or is this paranoia on our (the workforce's) parts? Or a new kind of "serfdom," different from a few decades ago? It's something to ponder.
I have never asked a candidate to sign an NDA, and I usually try to give them just enough information to evaluate the job without learning too much.
However, it's important to remember that an interviewer has basically three jobs to do when they interview you:
It can be extraordinarily hard, sometimes, to sell you on how exciting the project will be without telling you some things that you "don't need to know." Often, the more gee-whiz the project, the more difficult it is to give a true representation of what you'll be doing without the NDA.
Should you sign one? Well, that's for you to figure out for yourself, and it probably depends on the project and how much inherent trust you have for the employer. If at this early stage you don't feel enough trust for them to sign an NDA, it may be a sign that they're really not the best match for you.
But remember that although there are definitely employers that throw non-disclosure agreements around as though they had found the location of the holy ark of the covenant, there are always a few who legitimately have something novel and what to share it with you in a safe setting.
"company will provide a writen, specific list of information considered confidential within 7 days of disclosue of such information".
In 99.9% of cases they don't do it.
The clause to watch for is the non-discluse non-use clause where they say you can't use the info - I always put a line through such clauses.
One trend I don't like at all is the NDA visitor badge - when you sign in at reception you sign an NDA - again - put a line through any bit's you don't like and inital the change.
Finally beware any NDA longer then two pages - it can all be said in page or so, more than two is a big red flag
IANAL but I've signed a lot of NDA's in my time
Never underestimate the bandwidth of a truck load of tapes
Cliff wrote: "I've always thought that the interview is where an employer and a potential employee feel each other out."
Well, whatever gets you a job...
"The truth which makes men free is for the most part the truth which men prefer not to hear." --Herbert Agar
I saw a reverse NDA a couple of years ago that was interesting. An investment bank in NYC had come to the conclusion that it the relevant consideration here was the risk of an interviewee suing the bank after the interview claiming that the bank had misused proprietary information provided by the interviewee during the interview. For example, a candidate could tell the bank something that resembled a product later used by the bank. To counter this threat, the bank required the candidate to pledge not to provide any proprietary information and to warrant that all information provided during the interview was in the public domain. Personally, I agree with this approach. I don't believe it is a useful practice to negotiate and try to enforce NDAs. They are almost impossible to enforce in any meaningful way.
IANAL, but if I were you, I'd take a lawyer along to the meeting and say "You don't mind if my lawyer sits in on the meeting, do you? I have some attractive offers from your competitors and I wouldn't like them being sued because of this NDA". You don't have to have a proper lawyer. Just a mate wearing a nice suit. If you choose a mate who can type fast, you can ask him to transcript the meeting, then at the end, get the transcript signed by all the executives. Or have him record the meeting on a dictaphone, like a police interview.
Either way, get on record what data they give you. If you're going to be sued, you may as well get the disclosure out of it too.
Michael
...another comment from Michael Tandy.
"Goodness me, how unlike the FBI to abuse the trust of the American public." -- The Onion
Basically, if it seems to be saying really outrageous stuff and nailing it down without the slightest room to weasel out, you're in trouble. Contracts are contracts- it's not a simple matter to claim 'this was unreasonable so it's not valid or binding'. In fact, some of them have specific language stating that you've read the contract, understand it and agree that it is valid (another good litmus test- does the 'boilerplate' have you pointedly agreeing that it is valid, or does it just make its points?
Another tactic to look out for might be the traditional music business tactic of the 'deal memo', which could easily be adapted to the dotcom world. Basically, if there's a post-it saying something that seems 'reasonable' but could be used with legal literalness to harm you, and you're asked to sign it, watch out. I think the music biz version might go like this:
X Band will exclusively come to an agreement for a recording contract with XYZ Recording Company
Not many words, but sign it and contract law applies to it- you don't actually have an agreement yet, but you've just pledged to work only for XYZ before they've even set out any terms (the terms will _suck_). This is possible because there are far too many guitar players and always have been ;) however, the potential dotcommer is not forever protected from this kind of treatment just because of current scarcity of tech professionals. That will pass.
In the final analysis, whatever the rationalisation, it's not sensible to be too flippant about signing legal documents that can be used against you. It's all too easy to abuse these things. Ask yourself if the company is willing to sign _your_ little contract in return- and whether you can afford to get a lawyer to enforce your little contract. Signing the NDA is potentially turning over too much power to the company- and this depends entirely on what's set forth in the document. There is no such thing, legally, as 'boilerplate'- it doesn't matter what they say about the relative significance of parts of the contract, every word applies, with the exception of bits marked 'summary, see below for actual conditions': if ever you are given a contract with a 'summary', totally ignore the 'Cliff's Notes' version and pay extra attention to the actual legalese as they _are_ trying to slip something by you :)
Ahem.
.), I'll comment. However, this is not legal advice; if you need that, see an attorney licensed in your jurisdiction.
I am a lawyer, and I type quite fast, thank you. Enough so that rather than dictation, I typed in drafts for secretaries to finish. I don't know my current speed (not that important now that most of my life is ans an economist), but I used to do over 100wpm on a manual. As fate would have it, I had one of the few legal secretaries in town who typed faster than I do . . .
Anyway, having been involved in this issue from multiple sides (interviewee presented with NDA, interviewor presenting NDA, attorney writing and advising on NDA's . .
An NDA at the initial interview should not be alarming, at least if drawn properly. A non-competition agreement, however, would be another matter. [sidenote: almost all non-competition agreements out there are unenforceable. They must go *no* farther than absolutely necessary to effect the underlying agreement, as they interfere with the fundamental right to practice one's trade or profession, and I've seen very few that meet this requirement.]
Just as an example of appropriate: a consultant being hired to solve a problem. We needed to disclose enough to see how the consultant would react to this particular problem--we had already determined the hard way that knowing the general skills wee needed wasn't enough.
Unless the job is specifically for an area that the company might not be known for, say a new chip company, and they are interviewing you for the skills you have in chip design, then I can't see how they can require one or even need to enforce one during an interview. It would be easier for them to simply discuss your ability in hardware and circuitry design without mentioning how it relates to the position.
You are correct that the interview should be about what kind of employee you are/would be. Your resume should state the facts about your skills. If they need clarification they can simply say, "Tell me more about your experience in X Job or Y job." That way they are discussing your experience in a job, not a field. Too many times interviewers forget that there are two people in the interview with the same agenda. You both want to fill a position, but there is such a thing as a second interview. This would be where I think an NDA would be appropriate as it would show that they like who you are and now they want to know if you would be excited to work on their item.
Good luck on your job hunting.
Myxx
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Twisted Little Gnome - The Podcasting Network http://www.twistedlittlegnome.com
As they thought everything they did was secret, I think it would have been very hard to discuss with them if I did not know what they were developing. And the reason for keeping it secret was valid I think. They were the only one doing this, with this technology. In a way similar to the "Transmeta situation". By the way, the product is official since long, and the company is publically traded. They were developing the C-pen, a "pen" with a digital camera inside that can parse text. Very cool!
Exactly! EULAs and other contracts have already suckered many folks into the process of signing away rights without even reading the fine print. NDAs in job interviews represents further encroachment.
However, simply saying "no" puts you into the role of the spoiler in any negotiation. As I've had NDAs and noncompetes (they tend to be bundled these days post-hiring), dropped on my desk as an afterthought (they should have been negotiated up front), I've remained one of the only employees not required to sign one in the past three companies I've been in by simply responding that I'd have my attorney review it and send back responses - of course, I'd need the company to authorize my attorney expenses in writing, in advance. (Keeping this open ended is important - it might only take $200-$300 of his/her time to review the initial document, but by keeping it open ended, you can keep negotiating things until they are satisfactory and this can cost several thousand by the time you're done).
That usually sends the HR types scurrying away, to never be heard from again (e.g. making them go get financial approval, which if obtained, sets a precedent that might just blow their budget, with every employee running up possibly uncapped legal bills! Don't forget, HR isn't exactly a profit center and they don't usually have a lot of power with the money folks in a company).
The best thing is that the response is fully reasonable - in fact, if they don't permit you to review it with counsel, have this documented by them that the respective NDA/noncompete was required and any review was not permitted. (That's about the quickest way to nullify that kind of document). I had peers who were given surprise noncompetes they had to sign to receive their paycheck on payday - no attorney review permitted. "Here's your paycheck - but you have to sign this first. Don't worry about reading it if you want to be paid." Seriously.
One other suggestion: if you're asked for a noncompete, recognize what it means. In many cases, you're being asked to keep yourself and your knowledge off the market for a period after your termination, presumably to protect the company from your knowledge coming back to bite them through competition. My response has been that this protection is insurance, and insurance always costs money; the appropriate cost for this insurance is my salary for the period being purchased in escrow, to be mine upon any termination other than for committing a felony.
In every case, this ended up in the issue being dropped.
*scoove*
I work for a fast-growing startup and when we go to hire people, they want to know all about us. With the nightmares of other .com's out there, they want to know how we are financed, what exactly we have and don't have yet, and where we are headed. We expect them to want to know this, so start with an NDA and then take them through the whole horse and pony show. I haven't found anyone that thought it was strange, and only one person actually read it. We aren't trying to steal them away from competition through a non-compete, but provide our company with legal recourse if we found them mirroring our business. Wouldn't you like to get the big picture at a company rather than just show up first day to find out that you had just boarded a sinking ship?