NCAs and NDAs

This editorial was originally published on Mar 12, 2008. It is being re-run as Steve is on holiday.

It’s getting close to March Madness, but this editorial has nothing to do with basketball. I saw a career newsletter recently that answered a question someone had about negotiating non-compete agreements (NCA) and non-disclosure agreements (NDA). The basic answer was that you might want to negotiate reasonable limits to these agreements to protect yourself.

I’m under a few NDAs, one as an MVP, one as part of Red Gate, and I still have a NCA as part of the sale of this site. I’ve also signed some in the past, but I’ve been careful to read them and negotiate the terms to be more fair, at least in my mind what was fair to me and the company. Often the original agreements I’ve seen are heavily in favor of the company and should be changed.

The MVP one with Microsoft actually seemed fair to me and mostly covered releasing information that we get as MVPs in advance of Microsoft’s disclosure. So I always ask before I repeat something I’ve gotten through their channels.

I don’t think that NDAs or even NCAs are that commonplace as a condition of regular employment, but you should be careful and read them carefully. The exceptions might be if you’re a consultant (often an NCA will be given to you) or you work in a company that’s going some type of research or invention, including software. In these cases, I think you might see a standard one.

However you feel about them, usually they’re required as a condition of employment in those cases, however you don’t necessarily have to accept them as is. I highly encourage you to read them and ask for changes that you think make sense. Usually this involves limiting the distance, time, or scope of the agreement. I definitely advise you to limit time frames to no more than one year for most time limits, a reasonable distance limitation (50-100 miles), and scope out specific companies for which you cannot work (for example, current customers or even only those you have contact with).

One thing I’d also mention is that don’t look at these agreements as ironclad. I know consultants that have gone to work for current customers of their employers by negotiating the transition. Often the contractor doesn’t want to anger its customer, so it may let an employee go as a gesture of goodwill. Of course you probably have to work for the company, not be your own contractor.

Just keep in mind one thing if you ever want to get around the NCA or NDA. You need to ask and negotiate again, which just might get you what you want. If I’ve learned one thing in negotiating anything, it’s that you can’t get it if you don’t ask.

Steve Jones

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