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I worked for Company A on Product X, with intimate knowledge of its implementation as well as in-development features. My contract with A included a confidentiality agreement (with a survivorship clause that explicitly specifies that it survives termination of employment and has no expiration). Company A had layoffs and let me go.

Company B has a product Y that competes with X. B offered me a job working on Y. If I accept the offer, sharing the proprietary information I possess about X with B would be both a contract violation and an ethical violation.

How do I avoid accidentally sharing that information? Everything I do is informed by my accumulated knowledge, so inevitably some part of my decisions made as an employee of B would be at least influenced by my knowledge of X. Is it possible to avoid the appearance of sharing that information (even if actual sharing doesn't happen)?

Edit for clarity: Whether the confidentiality agreement has an expiration or not isn't part of the question. Assume that the agreement is valid, and will cover my employment at B.

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  • 5
    The confidentiality agreement should state which information is protected. Can you give more details about that?
    – nicola
    Apr 17 at 4:31
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    Could you specify the country/state you're located in. Apr 17 at 6:12
  • 42
    In many jurisdictions, NDAs need to fulfil several legal conditions to be actually enforceable. One of those conditions often is that the confidentiality requirement is time-limited to some "reasonable" time frame. Companies will still often try to push over-reaching NDAs that try to pretend they are valid indefinitely, but that's just scare tactics with no legal basis and zero enforceability. So first of all make sure you know exactly which parts of what you signed are valid (if any) and which parts are just handwaving and wishful thinking.
    – TooTea
    Apr 17 at 8:13
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    Is it reasonable to believe that one of the reasons you were hired was your knowledge of the product. Even if they didn't come out and say it?
    – DogBoy37
    Apr 17 at 14:02
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    Please provide your jurisdiction. As TooTea mentioned, some of these extreme confidentiality agreements are scare tactics with limited legal enforceability. In my jurisdiction, such an agreement (which continues after the termination of employment) is null and void unless the company keeps paying me after my employment ended, and is practically only enforceable while I'm still getting those payments, even if this is not written in the contract. This means for example a no-compete contract is null and void unless it includes post-employment payment of at least 50% of my old salary.
    – Val
    Apr 18 at 6:12

4 Answers 4

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Been there, done that.

To large extent this comes down to "Do the best you can within reasonable limits".

Here are few guidelines

  1. No: Specifics on product's inner workings, formal requirements and specifications, parts, vendors, trade secrets.
  2. No: business plans, financial data, costing, pricing, product road map.
  3. No : organizational structure, compensation details, key employee names.
  4. Yes: general best practices, industry and application/product domain knowledge (even if gained at the employer), frameworks/processes/tools (unless they are highly proprietary and home grown).
  5. Be upfront and transparent. Tell your new employer upfront that you won't share any confidential details about your previous gig. A good employer will not only accept this, they will encourage you to do so (since it limits their own legal exposure risk). You can also tell your old employer that you fully intend to keep confidentiality as agreed: this can help make them less jumpy.
  6. There will always be a gray area. If in doubt, get some input from a trusted (preferably neutral) entity.
  7. Document your decisions to what to disclose or not and also document potential overlaps where you were NOT involved (protection against future legal action).

Two anecdotes:

In one meeting we were discussing a major product decision. There was a great solution but I couldn't mention it since I'd had seen it recently at a previous gig. I was biting my tongue until fortunately a very smart product manager came independently up with the same solution. However, I CAREFULL documented the meeting and who said what when, so I could proof my non-involvement if needed.

In one case, I specifically reached out to my previous employer for advice on what to do in a specific "gray area" situation light of our agreement. It was hysterical: they had no idea how to handle a request like this and it took them three month to come up with an extremely carefully worded reply that really didn't say much :-)

it survives termination of employment and has no expiration)

That seems excessive and my be in violation of local labor laws or practices. I would suggest doing a bit of research on that one.

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    This answer gives very good actionable advice. I am not a lawyer, but in business: If in the US, the NDA should have a specific end date such as 1 to 3 years. In US, CA almost no NDA is enforceable anymore..
    – DogBoy37
    Apr 17 at 14:06
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    Good advice, especially the documentation thing. I hadn't thought of that. I won't be sharing any of the secret sauce, but I also want to make sure my ass is thoroughly covered if Y grows a new feature that looks suspiciously like something planned for X. Side note: from what I've been able to determine, the specifics of the confidentiality clause are enforcable in my case. It's pretty narrow in scope, not anything I would consider unreasonable. Apr 18 at 2:38
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    @infinitezero that rubs up against the line. It is safer ethically to say nothing unless safety is concened. IMHO. Keep in mind that the current employer might think that "If he would do that to them, he would do that to us". That would limit career growth. I am not a lawyer and I do not play one on TV (for those old enough to get the reference).
    – DogBoy37
    Apr 18 at 20:24
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    "document potential overlaps where you were NOT involved" -- where would one store this documentation? If it's a personal file at home, it might violate the current employer's rules about protecting their proprietary information (e.g., storing only on company premises/devices). If it's a work file, then it could be accessed by the current employer and it might reveal the former employer's information in violation of the NDA: Unless one documents every meeting/decision in similar detail, the presence of a CYA document for this meeting/decision would flag that it was "bullseye" NDA material.
    – nanoman
    Apr 19 at 15:41
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    @nanoman: there is no need to be secretive about this. You can ask the new employer what they prefer: it's in their best interest at well. If everyone is super squeamish the best option would be a online notary service. The documents would only be accessible when there is a legal reason to access them at which point the cat is out of the bag anyway.
    – Hilmar
    Apr 19 at 17:31
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[Read your NDA carefully. It will tell you some of this. I can't quote from any of the ones I signed because they all include clauses that say I can't do that, but read your own in detail. Also keep in mind that overly broad NDAs are often set aside by courts, so if you act reasonably you will not be attracting legal or ethical jeopardy.]

Let's say as part of working on X you learned a true fact like "A is faster than B" or "these screws don't rust in the environment X is deployed in" or "you should sharpen your chisel every day when carving this stuff". If you, while working on Y, say "for X we used A because it is faster" you are revealing information about X and possibly breaking your NDA. But if you say "A is faster here" or "these screws don't rust in [seawater or whatever]" or "did you sharpen your chisel today?" you are not.

Most NDAs are much less enforceable than people think. They are often much less relevant also. Before something has been released, the information that it will have a particular feature is important and proprietary and should be protected. Once it's released, that is in the press release! Yes, other things stay secret indefinitely, but not every scrap of information you know qualifies.

You should protect with the highest determination things like your old employer's future plans for X, the names and contact details of former fellow employees, the pricing and payment structures that were offered for X, what your fellow employees were paid, and other "inside details" of the business. You should also hold secret any super cool proprietary tricks that made X stand out from the rest - a different file format, a compression trick, something no one else has that made it somehow better in a way people didn't know the mechanics of. You can be pretty calm about having learned which sorting algorithm is faster, or the command line options for a commonly used product in your industry, or other things which are not so much "information about X" as they skills you have developed while working on X. To be "influenced by your knowledge of X" is not at all the same as "to tell people how X works internally."

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    "if you act reasonably you will not be attracting legal or ethical jeopardy" — but they might drag you to waste time in court anyway. And you never know how crazy a judge you'll get. Or if the NDA forces binding arbitration. Apr 17 at 13:57
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    @MindwinRememberMonica: That's true, but if the former employer is determined to sue you, they can drag you to court regardless of how careful you've been...
    – psmears
    Apr 17 at 15:02
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    "might" is doing a lot of heavy lifting. A person might be caught up in a lawsuit around bad acts of their managers and then get a crazy judge or whatever, but we all still do our jobs without worrying about that every minute. Apr 17 at 15:56
  • @psmears I agree with your sentiment. If the former employer is crazy/stupid enough, just you being hired by a competition would trigger threats of lawsuits, but that's typically unenforceable unless they are still paying you under the NDA.
    – Nelson
    Apr 18 at 1:34
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    First, when someone says "how do you know?" they usually want things like "here is a blog post comparing the two" or "here is an article showing that A is faster when [circumstances]" and if you have that, great. If you don't, then "I was on a project that was also [circumstances] and we compared and A was faster" is convincing without the project name. But if that imaginary person needs more convincing, it's simple enough to say "let's test it and see" with confidence. Not saying things is much easier than you seem to think. Apr 18 at 14:25
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Only confidential information is confidential

This answer takes a more legal position than an ethical one - legal principles are less subjective, but my personal opinion is that it is ethical to do what you promised to do and what you promised to do is spelled out in the common law and the contract.

Organisations try to take the position that everything an ex-employee learned during their employment is confidential - they are wrong.

There are only two types of confidential information:

  1. Common law confidences which you are required to keep even if you don’t have an NDA. To qualify, the information must be:
  • of a confidential nature and not public knowledge;

  • have been communicated as confidential or in circumstances which imply it is confidential;

  • identifiable, and you can identify the information with sufficient specificity; and

  • at risk of actual or threatened misuse.

  1. Contractural confidences that are actually spelled out in the NDA. The definition can be broad or narrow and can encompass the common law definition; but it must be specific enough to allow information to be classified as confidential or not confidential. “All information about product X” doesn’t work because that tries to capture information that is clearly not confidential - the existence of product X for example (assuming it has gone to market or been publicly announced).

So, you can (and should) be able to write down all the things about product X that you know that are confidential by either category and your obligation is then simple: don’t talk about those. Anything else, you can talk about.

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  • "it is ethical to do what you promised" is something I am saving for later. This is a very important part for anyone who is struggling with a grey area between legal and ethical.
    – KnightHawk
    Apr 22 at 18:16
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Sometimes the answer is to work in a different area of the product than in your past job, so direct knowledge is less likely to transfer accidentally.

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    A valid answer, but not always practical. It doesn't desire to be downvoted.
    – DogBoy37
    Apr 17 at 13:59
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    Doesn't bother me. If folks don't find it useful, that's legitimate. If folks do, they'll upvote. I'm comfortable either way; I know it will be useful to someone.
    – keshlam
    Apr 18 at 0:04
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    Ouremployment marketability is usually preceived to be largely in relation to our past employment experience/expertise/achievements. This is especially so in industry. In commercial management there is more cross-movement between different sectors, at least at senior level positions. People jobhunting can't afford to be too selective or wait too long for a suitable position to emerge. But, yes, I agree that this option effectively "designs out" the dilemma that OP anticipates.
    – Trunk
    Apr 18 at 8:20
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    I hate when I realize I misspelled a word and can't edit the comment.
    – DogBoy37
    Apr 18 at 13:59
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    To edit a comment, copy it, edit it, repost it and delete the previous copy. Yes, you lose the up-votes. Yes. It puts the conversation out of order., when the edit restriction is supposed to maintain antecedents. Don't ask me to explain, I just post here.
    – keshlam
    Apr 18 at 21:27

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