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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?"
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?