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?
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.
Commented Jul 20, 2016 at 11:27For 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.
Commented Jul 20, 2016 at 16:01@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.
Commented Jul 20, 2016 at 17:35It'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.
Commented Jul 21, 2016 at 14:25I 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.
answered Jul 18, 2016 at 18:29 IDrinkandIKnowThings IDrinkandIKnowThings 49.9k 18 18 gold badges 124 124 silver badges 210 210 bronze badges Comments are not for extended discussion; this conversation has been moved to chat. Commented Jul 19, 2016 at 22:31You 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:
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.
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.
answered Jul 18, 2016 at 19:02 6,216 2 2 gold badges 34 34 silver badges 36 36 bronze badgesMost 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.
Commented Jul 19, 2016 at 14:35I think your first sentance is missing a negative somewhere. Aren't you saying you should run it by a lawyer?
Commented Jul 20, 2016 at 17:37@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.
Commented Jul 21, 2016 at 1:04@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
Commented Jul 24, 2016 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?
Commented Jan 29, 2017 at 12:32It'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.
answered Jul 18, 2016 at 18:28 726 4 4 silver badges 8 8 bronze badgesOne 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.
answered Jul 19, 2016 at 0:36 robertlayton robertlayton 351 2 2 silver badges 4 4 bronze badges+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.
Commented Jul 19, 2016 at 12:42 and make sure to initial the cross out. Commented Jul 19, 2016 at 12:51@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 .
Commented Jul 21, 2016 at 2:24I 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).
Commented Aug 1, 2016 at 18:37 @JasonJ And to date it. Commented Aug 10, 2017 at 11:21A 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.