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I've worked at my current employer for a little more than seven years. We're a small startup of about 20 employees. At the beginning of 2014, we started a new project that I was and still am involved in. Fast forward to today, my employer is asking me to sign a non-disclosure agreement. Ordinarily that wouldn't be an issue for me but the document is backdated to the start of the project so that it looks like I signed it in early 2014. The agreement contains the usual punitive verbiage and looks like a typical non-disclosure agreement.

I don't object to the agreement but I do have a problem with the backdated aspect. I'm not worried that I've done anything wrong but I just feel like that's a lot to ask of me. I've never been asked to sign any legal document that was backdated like this. I think it would be best to avoid signing the agreement but how can I address my concerns with out creating much conflict with my employer?

  • Is it related to disclosure rules for a patent application? – Owen Jul 19 '16 at 2:32
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    There is nothing illegal or immoral about the backdating if all parties to the contract agree with it. The problem is that the backdating is a short-cut for making the contract include what the employer wants (that from now on, you will refuse to discuss any of the work that started 2 years ago) and this shortcut makes the contract also include something you should never sign (a retroactive agreement to limiting your past behavior). The employer changed the date because it's cheaper than editing the contract to state what is really meant. – zyx Jul 20 '16 at 11:27
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    For what it's worth, I've had conversations with lawyers where they suggest including outrageous terms they would never agree to and then chortle if/when the other side accepts it. The least confrontational defense in such cases (may not be applicable here) is a mutual NDA. – Spehro Pefhany Jul 20 '16 at 16:01
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    @ChrisW I would avoid the use of the term "cross-posted" for what you did. Cross-posting the same question across multiple SE sites is not allowed, but the Law.SE question and this one are asking for two different things, so they're related, but not cross-posted. Using that term may cause you some headaches from people that don't bother to actually read through both. – skrrgwasme Jul 20 '16 at 17:35
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    It's not immediately clear if the people giving the contract know or have mentioned that it's backdated, or that they've tried to give any justification. Do they/have they? You might sign it, strike the date, write and initial the correct date, then hand it back. – Grimm The Opiner Jul 21 '16 at 14:25
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I think you are right to be concerned. Your employer is asking you to falsify documentation for them that introduces an element of risk on your part and has no potential for anything beneficial for you. Worst case scenario you are held accountable for something you did not realize was a problem or did not even do. While the best case is nothing changes.

I would suggest a compromise to your employer. I would sign the Non Disclosure agreement with a current date. And then sign a document where you affirm that you have not done anything that you believe would violate the spirit or letter of the NDA since you have begun employment. Assuming your employer has no ulterior motives with asking you to sign the back dated NDA this should be an acceptable solution.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Jane S Jul 19 '16 at 22:31
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You should carefully assess risks of signing any legal document without running it by a lawyer. (That is to say, what will happen if you sign it without understanding what exactly you are signing.)

You run the risk of screwing yourself for a good, long time if you sign something without understanding the risks and weighing them carefully. A good lawyer can also point out issues in an agreement that you can push back on.

I have two real-world examples that happened to me. They are not about NDAs, but the same advice applies:

Non-Compete

A former (potential) employer required I sign a non-compete document prior to getting hired. I ran it by a lawyer and he pointed out that there was language in the document that would've prevented me from taking another job in my field (IT) in my city of residence for the next 3 years. The review for this contract was less than $100.

I pushed back on that bit and the response was as I expected ("Oh, it is standard boilerplate"), so I refused to sign it and declined the job.

Company ownership of all works

A former employer required that I sign a "prior-works" document that required that I list all my prior "inventions". I ran it by a lawyer. He pointed out that buried in the text was the provision that I would be signing over ownership of anything I developed while employed there. Not just during work hours, mind you, but if I wrote Frobozz Hunter on the weekend, using my own gear, they would own it. I believe the review for this contract was in the neighborhood of $250.

I pushed back and asked that the language be changed to reflect that they owned only what I wrote using their computers, during work hours. They agreed and I accepted the job.

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    Most people avoid getting legal advice from lawyers because "it costs money". They're wrong. If done right, it SAVES you a lot of money, time and headaches. Your examples back this up quite nicely. – Radu Murzea Jul 19 '16 at 14:35
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    I think your first sentance is missing a negative somewhere. Aren't you saying you should run it by a lawyer? – skrrgwasme Jul 20 '16 at 17:37
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    @RaduMurzea That's all well and good if you have enough disposable income that you won't notice an unexpected expense of a few hundred dollars. Most people are not in that situation. – HopelessN00b Jul 21 '16 at 1:04
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    @HopelessN00b Life is a tradeoff. The unexpected expense of not being able to work in your chosen profession or having to give up all rights to your personal inventions can be devastating as well. As far as figuring out how to set aside a few hundred dollars disposable income, check out Money – BryanH Jul 24 '16 at 1:28
  • @BryanH, Re "there was language in the document that would've prevented me from taking another job in my field", what's that phrase? Also, for the second scenario, "they would own it" only for as long as you are being employed there right? – Pacerier Jan 29 '17 at 12:32
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It's reasonable and insightful for you to hesitate at the back dating of the non-disclosure agreement(NDA). By signing it in its current form, you would be opening yourself up to any of the punitive actions outlined for the entire period.

The best way to move forward would be to ask your employer if there is a specific reason for back dating it; it may be that your employer simply put the start date of the project because it's standard operating procedure for NDAs and they haven't really considered that there's a ~2 year gap.

If you have any doubts that you may have done (or even forgotten) something that may violate the terms of the NDA you should raise them with your employer before signing.

While it's likely a non-issue, it's important to protect yourself.

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One possibility I haven't seen covered is the chance this is an honest mistake. In other words, they grabbed their standard NDA, which was last updated two years ago (it is possible others have signed without checking the date, or didn't care).

If you haven't received any word on this front yet, then it might be an option to just say "I have read the NDA and it is all good, except for the date appears to be old. Can you please update the date, and then we can go ahead and sign?"

Doing this forces them to come outright and say "we want you to backdate", or they can back down from that position and update the date.

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    +1 I would even cross the wrong date out, write the correct date in handwriting instead and then sign the NDA. This way you cover "the honest mistake" possibility, while you elegantly force them to come back to you and explain their intents if they are really acting maliciously. – s1lv3r Jul 19 '16 at 12:42
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    and make sure to initial the cross out. – JasonJ Jul 19 '16 at 12:51
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    @s1lv3r Exactly. That's what I do with all clauses I don't like. Just strike them out, initial them, sign on the dotted line, and return. Then it's their problem. Unless I reject the entire contract out of hand ... – user207421 Jul 21 '16 at 2:24
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    I would cross the wrong date out, write the correct date in handwriting, initial it, sign it, then also send an email about the correction you made carbon copying all the relevant people. Then I would also keep a copy of everything, including a paper copy of the email I sent, that I would keep securely at home. Creating a paper trail is important because it's just too easy for them to forge your signature (if you're the only one who didn't sign it). – Stephan Branczyk Aug 1 '16 at 18:37
  • @JasonJ And to date it. – Philip Schiff Aug 10 '17 at 11:21
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A backdated NDA cannot serve any legal purpose.

An NDA is valid from the point you sign it. A backdated NDA is valid from the point you sign it, but appears to be valid from an earlier date.

If you had done something in the past that would be in violation of an NDA if it had been in place, then the company cannot claim you were in violation, unless they are lying about the point in time when you signed. Assuming that the company isn't going to lie in court, the backdated NDA has absolutely no value to them.

I assume the best in people, so I assume that they would never use the backdated NDA against me, so there is no reason to sign it. You might assume the worst in people, so you might assume that they would use the backdated NDA against me, lying in court, which would be another good reason not to sign it. Conclusion: No matter what your assumptions are, don't sign it.

If you think someone might want a good reason why you don't sign: Well, obviously by having an incorrect date you would be effectively lying - you would make it look like you signed two years ago, when you are signing right now. You are not a liar. You don't sign something that's a lie.

PS. It is possible as Colleen points out that there are motives that are not malicious against the employee. In the case described, someone intends to make someone act differently by providing a forged document.

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    I have to wonder if they are getting paperwork in order to try to sell off the project, and the potential customer is not happy about a missing NDA. The company management may be deluded enough to believe that since they meant for him to sign it back then, and they have no intention of doing anything with it, and it will ease a lot of complications in their deal, that pretending like it was actually signed and misfiled is the best way to go. I've seen worse bumbling. – ColleenV Jul 18 '16 at 22:40
  • @ColleenV Yes. "Never ascribe to malice that which can adequately be explained by stupidity." – David Jul 21 '16 at 12:36
  • @ColleenV, What you're suggesting is a possibility, in which case, it could make things worse for him if he signs it. Having a stranger own the project and the backdated NDA could increase the risk of him getting sued for no reason. Also, there could be another reason the NDA needs to be backdated. May be, the project is about to get sold, and most of the developers are about get laid off. And asking for a backdated NDA now before the layoff ensures that employees don't run off to a competitor, or start a similar but competing project, once the layoff occurs. – Stephan Branczyk Aug 1 '16 at 18:28
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Rather than try to balance your loyalty to the employer and loyalty to your principles (and generally the truth), I strongly recommend not signing the backdated document. A lot is at stake for you personally with this silly document.

If you sign it the stain will stay with you until you die. After signing it you will never be able to claim that you don't bend the rules, you tell the truth, have strong principles, etc.

There are many advantages to not signing it, here are just the first two:

  • you avoid doing something that will worry you for a long long time - even if nothing bad comes out of it.
  • the worse that can happen you will need to find a new job - after 7 years it's not such a bad idea ;)
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    Theoretically I suppose the worst that might happen is that some suit refuses to accept the project because its paperwork is incomplete, and so the work is wasted, the employer goes bust, people lose their jobs, and families suffer. :-) – ChrisW Jul 18 '16 at 23:25
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    @ChrisW The next thing might be to tell the customer that full regression testing was done, even if it wasn't - once we bent the rules, why not twice - we don't want them to reject the project, do we? Families will suffer. – tymtam Jul 20 '16 at 23:02
  • I can see the potential harm (to the customer) of falsifying whether testing were done. What's the potential harm (to the customer) in documenting a backdated NDA? – ChrisW Jul 20 '16 at 23:15
  • There is one normal reason (explanation) about backdate. The NDA has to be signed at the beginning of the job. Otherwise if the employee gives information to others (not working there) he can always say that the information is given before the NDA (e.g. 1 month before). – i486 Jul 21 '16 at 7:49
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Sign it.

Make sure they give you a copy of the complete, signed document (signed by both parties).

Go to a public notary.

In the presence of the notary, write at the bottom (or the back of the document): "This document was executed Thursday, July 21, 2016, [or whatever enter today's date]" and sign this note and have the notary seal it. This is proof the document was executed on a day other than it was dated.

A contract with a false date is invalid. If they ever sue you for disclosure using that NDA, bring your notarized version to court and show the judge and tell him/her that the document was backdated. The case will be dismissed.

This procedure will make your employer happy and nullify any possibility that the NDA could be used against you in the future.

The other answers are either legally incorrect or suggest courses of action which would needlessly annoy your employer and compromise your standing at your company. To jeopardize your employment according to the advice in the other answers would be foolhardy.

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    Unless you have a notary present for the signing of the document, I'm not sure that they will do this for you. What is to prevent you from taking any old contract and writing "This was executed on ...."? – David K Jul 19 '16 at 16:26
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    @Socrates Your answer would be bolstered by referencing your legal experience using this technique, including the circumstances in which it was relevant, the results that came out of it, and the jurisdictions that were relevant. – doppelgreener Jul 20 '16 at 6:09
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    @Socrates Wildcard and David K are right, there is no proof that the actual signature was executed that date, You could go so far as to copy the document that you had signed 2 years ago, remove the signature, then sign it in front of the notary again, so any notary based option is useless. – Sam Jul 20 '16 at 13:33
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    @Socrates, the down-votes you are seeing say you are almost certainly wrong, but I am going to stop arguing with you because you clearly don't accept logic. – Sam Jul 20 '16 at 14:18

protected by Jane S Jul 19 '16 at 3:21

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