As an independent contractor for an American client I signed an NDA. I'm not American and I was unfamiliar with NDAs up to that point. Now I've applied to employee positions with competitors (I didn't sign a Non-Compete and I asked the old client and they're cool about it). Their application processes are online and in their forms they all ask if I've signed an NDA or any other document that would limit my ability to work for them. I answer yes but I also want to attach my NDA to my application so they can assess that themselves (I don't want to see my chances cut so bluntly). Is it OK to do that? I wonder if giving them a copy of my NDA could cause any legal trouble for me or them down the road. Thanks for your attention.

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When an NDA says: "This Agreement may not be released", does this mean you can't show it?

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    Not a lawyer. But my understanding behind NDA's is just that. Non-Disclosure. I may be incorrect in my assessment, but disclosing an NDA itself would effectively breach the terms of the agreement. With this in mind, best place is to ask the Law Exchange, or better yet, a labor-law lawyer in your area about the specifics. – Frank FYC Sep 13 '15 at 4:24
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    An NDA only specifies the topics that you are not allowed to reveal details on. Unless the NDA itself is listed among those topics, disclosing the text of the NDA does not violate the terms of the agreement. Otherwise, just mentioning that have signed an NDA would already count as a breach, which is kind of impractical. – Bart van Ingen Schenau Sep 13 '15 at 12:19
  • "I'm not American" - doesn't make a difference whether you are American or not. What will make a difference is whether you are applying for a job in the USA or elsewhere. Apart from that, check whether the NDA has a clause that forbids you to disclose the existence and/or the terms of the NDA. I would consider it absolutely normal to tell my new employer "I worked for XYZ and I'm not allowed to tell you about products they are working on, or hand over their customer list or their source code to you". And there is little reason for XYZ to want to hide this. – gnasher729 Sep 13 '15 at 15:44
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    Are you sure the NDA will limit your ability to work for the new company? Typically they only protect intellectual property, customer data and client information.... I've never had an NDA that prevented me working in a normal capacity at a similar company. – Jon Story Sep 14 '15 at 9:12
  • "released" could mean that they will let you out of it, or could mean that you could show it to people. Nobody can interpret half a sentence out of context. I don't think showing the NDA is the right idea (see my answer below) but if you really want to, either ask them (they've been co-operative so far) or a lawyer. – Kate Gregory Sep 14 '15 at 12:00

The NDA will let you know whether you're allowed to disclose that you've signed it or not. I've had some that prevent me from disclosing the client's name or the existence of the relationship. However in asking whether you can show the NDA, you're asking the wrong question. You are asked if you have signed something that would limit your ability to work for the new employer. Is being constrained from telling anyone the plans, products, and proprietary details of a former client going to constrain you from working for someone? Really? The first thing you need to do is read your NDA carefully to understand what it prevents you from disclosing.

I have NDAs about pre-release software, for example. Before the product is released, the NDA allows me to learn the software but not tell anyone else. That won't restrict my ability to, say, write code for someone with the current version. I have NDAs about client's customer contact information. I can't use what I know about their customers to help someone else approach those customers. That won't restrict my ability to provide good advice about software architecture, team dynamics, and customer needs. Are you really sure your NDA restricts you in any way? If not, and my bet would be not, then your answer is "No. I've signed NDAs, of course, but none will restrict my work for you."

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  • @Joe My job was to take info from public sources only and the NDA says that info from public domain is not Confidential Information. I never even had access to most of the things defined as CI in the NDA (client lists, marketing plans, tech data) and what I did have access to is updated frequently so by this time what I know about it is probably worthless. This is to say I couldn't risk the CI if I wanted. I edited the question. – solitaria Sep 14 '15 at 4:17

Their application processes are online and in their forms they all ask if I've signed an NDA or any other document that would limit my ability to work for them. I answer yes but I also want to attach my NDA to my application so they can assess that themselves (I don't want to see my chances cut so bluntly). Is it OK to do that?

The key phrase in the application is "limit [your] ability to work for them".

Most often, signing an NDA with one company would not prohibit your working for another. But the only way to know for sure is to understand the document you signed.

Before signing an NDA, you must read and understand it. If you don't understand it, bring it to someone who can explain it to you, and only then sign it.

Now, you are asking if it's okay to give this prospective employer a copy of the signed NDA and let them determine if it would cause legal troubles for you. This is a very bad idea for several reasons:

  • The hiring company is not your lawyer. They are not in the business of advising you of your potential legal troubles. You may need someone who represents your interests, not the potential employer's.
  • You will be letting a prospective employer know that you signed a document without understanding it (assuming you actually read it before signing). That says something about your judgement that you may not want to let hiring managers know.
  • Asking them to make the determination of the NDA's impact sends them the message that you aren't capable enough of figuring it out on your own. That's not a good message to send a prospective employer - it makes you look less than resourceful.
  • It's possible (although unlikely) that the NDA document itself contains information that shouldn't be shared with other companies. Handing it over could violate the terms of the document.

You need to read and understand the actual NDA document now. If you can't, find someone you trust to read it through and explain it to you until you understand it. Then you can determine for yourself if it actually limits your ability to work for others.

If (as I suspect) it doesn't prohibit such work, then in the future, you can answer "No" to this question.

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  • @Kate The actual question is: "Are you subject to any restrictive covenants, covenants not to compete, confidentiality agreements or other contractual obligations that would prohibit or limit your performance of any job duties at XYZ?". I've found nothing to this effect in the NDA. It only deals with Confidential Information, its use and the consequences of violation. I edited the question. – solitaria Sep 14 '15 at 3:12

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