At some point in your technical communications career (and probably at most of them), you will be asked to sign a confidentiality or non-disclosure agreement (NDA) before beginning work for an employer or client. Like most professionals, you plan on doing great work, and want to be able to show future employers and clients exactly what kind of technical communications masterpieces you can produce. But you’ve got to sign that NDA, and it’s gnawing at you how you’ll be able to show your capabilities without divulging information that could impact the company that hired you.
Now, there may be some technical writers out there working for legal or insurance providers who live to describe the impacts of indemnification, the beauty of holding harmless, the dangers of material breach, and the pain of punitive and compensatory damages. Most of us probably dread these terms as much as the blue screen of death showing up on our laptops. Understanding the basics of intellectual property and knowing the difference between what’s legal and what’s fair may not be fun, but it’s necessary to protect your reputation, your future, and the business relationships you work so hard to build. Because that one improper sample in your portfolio or on your web site could wreck everything.
Work for Hire versus Fair Dealing
According to Maurice Ross, an attorney with Barton, Barton and Plotkin LLP (www.bartonesq.com) in New York, gathering samples for a technical writing portfolio (or design, music or any other creative endeavor) is one of the most difficult and common problems professionals in these fields face because “you really have no right to use works for hire.” Your employer or client owns those works, and determines what you can or can’t use, although if the work has been published, you typically can use those works, because they are available by other means. Even if you have not signed a formal NDA, the courts generally find that as an employee, you are working under an implied NDA, since you are bound to maintain the confidences of the employer. However, he points out that all contracts have some sort of covenant of “good faith and fair dealing” so you may have options available that you never realized.
“It’s the unpublished works that are at the heart of the issue,” says Ross, who has represented both corporate and individual clients across a wide spectrum of industries including pharmaceuticals and entertainment. “In many of these big corporations, everything is a ‘state secret’ and they strictly enforce their NDAs. On the other hand, lawsuits are expensive and risk bad publicity. And practically speaking, the type of case where they would seek injunctive relief just doesn’t happen every day.”
Reasonable and Pro-active Carry the Day
Ross recommends using two touchstones in your dealings with your employer or client: reasonableness and pro-active communications. Be reasonable in your dealing with the company and in your expectations, and pro-actively communicate to ensure the best outcome. Remember that employers must protect themselves from the risk and damages that could occur from publishing proprietary information about their products, services, procedures, etc (even if it’s inadvertent). Balance that against your ability to make a living by showing samples of your accomplishments, and communicate with your employer or client early and often.
Pick Your Camp
Managing your portfolio in the context of the NDAs you sign comes down to a balance between the amount of work you want to do to maintain it, and the risk you are willing (or able) to take in using work samples. You likely fall into one of four camps:
- Sign it, do the work, and eventually use some samples to solicit future work–figuring that nobody will both to track you down.
- Sign it, do the work, and ask as you go along if you can use excerpts for your portfolio.
- Read it, talk to a lawyer, and negotiate terms that allow you to use excerpts that meet the company’s criteria.
- Sign it, sigh, and decide to think about ways to beef up your bare bones portfolio tomorrow.
If you talk to some writers who been out in the corporate world for awhile, you could easily come to the conclusion that almost nobody ever checks on the tech writer’s website, and the risk of “getting caught” is almost nil. But if you’re one of those in Camp 1, it’s quite possible to face a scenario in which a former employer has discovered the work on your website (or perhaps heard through the business grapevine that you show a sample that belongs to them). The company’s legal counsel issues a “cease and desist”(C&D) letter and you take the work down from the site and remove it from your portfolio. That could be a minor bump in your career, or a major obstacle. The bottom line is that if you choose to live in Camp 1, you’ll spend less effort building your portfolio, but a lot more time worrying about getting a C&D and repairing your reputation should an employer decide to exercise his rights and/or blackball you in your chosen industry.
If you are a communicator living in Camp 2, where you’ve signed that NDA and hope that you can get permission to use a sample or two as you create them, you run less risk of adverse effects to your career than if those in Camp 1. However, the reality is that many writers in Camp 2 are afraid to ask the questions and end up feeling trapped by an imagined obstacle to building a real-world portfolio. It can be tough to be pro-active, when it seems like your continued employment might be at risk.
I used to live in Camp 2, and finally learned that you don’t lose anything by asking. Ross, and many in the tech comm community suggest broaching the subject with your employer or client by painting it as an opportunity for the company, not just you as the writer. Ross suggests talking points along the lines of “I really enjoy my work here, and would love to be able to demonstrate what I’ve done, in a way that’s flattering to you.” Show that you are on their side, be selective about which projects and samples you are requesting, and offer something in return.
Better yet, move yourself into Camp 3. Read the NDA and have a lawyer read the NDA before you sign. Talk with the lawyer about the length of the non-disclosure term, specifics regarding what information is proprietary, and when or if the work will be published. If the terms seem overly restrictive, negotiate language that allows you to request samples that have been approved by the company, scrubbed of identifying information and pose little risk from being acquired by competitors. Believe it or not, corporate espionage is a fact of life, and there can be big dollars at stake. Work in the defense, security or intelligence communities must be protected for obvious reasons. But writing user manuals about a new version of a software application or assembly instructions for the latest lawnmower should be an easier sell. Living in Camp 3 means you’re committed to actively managing your career and protecting your clients/employers as well as yourself.
Do you find yourself as one of the unfortunates living in Camp 4? “Many companies have a ‘my way or the highway’ mentality,” Ross notes. “If you want the job at one of those, you’re probably out of luck.” Then your choice is to take the job and not use samples or not take the job and keep looking. But, sometimes the challenge of the work and the satisfaction in doing it far outweigh the desire to show off about it. If you’re living in Camp 4, take the time to review the NDA with a lawyer, and think about the risks versus rewards before you sign. Camp 4 residents have to be more creative, and you will likely expend a lot more effort in building a portfolio that shows your capabilities to the fullest. Chances are that your paid work may never be shown.
Practically speaking, the vast majority of us will never have to deal with the fallout from a C&D or litgation. But, if you’re in the big money areas (pharmaceuticals, R&D, etc.) or still suffering from the effects of a bad economy, ignoring the NDA and hoping for the best is like assuming you’ll never need to visit a doctor and not bothering to sign up for the company health plan.
Building a portfolio is a major and continuous project for nearly every technical communicator working today. And depending on your career path, your portfolio can be quite a mix of work– all of which should be safe to use and demonstrate your mastery of the universe. Here are some guidelines to kicking off that portfolio-building project:
- Determine if you have permission to use samples and how much you can use.
- Get that permission in writing either in the NDA or in specific requests.
- For the samples you are requesting:
- Be willing to scrub data, remove identifying trademarks, brands or color schemes.
- Offer to redact portions as requested.
- If needed, agree to wait for a period of time before including the sample in your physical or online portfolio.
If the nature of your work prohibits the use of actual samples, consider one or more of the following:
- Create a text summary of the work you did, without any kind of identifying information, highlighting the challenges faced, and results obtained. (e.g. “The team engaged for this project worked remotely from seven time zones. After recommending XYZ tool for collaboration, we completed the requirements gathering phase one week ahead of schedule.”) This allows you to offer a potential employer something other than “I can’t show samples because of the NDA.”
- Use your spare time to offer your help to non-profits in exchange for samples and referrals.
- Create samples from everyday life (the” How to make a PB&J sandwich” is a bit tired, but instructions for assembling your media cabinet or troubleshooting your internet connection are quite useful).
- If you’re in software documentation, offer to document an open source application.
Writers will continue to live in all four of the portfolio-building camps. Ross suggests that all of them retain a lawyer with intellectual property expertise. “Intellectual property is a complicated set of legal issues, and if you’re ability to make a living is imperiled, you‘ll be glad you have them on speed dial.” Attorneys may provide recommendations on professional liability or errors & omissions insurance, as well as proactively reviewing NDAs and work contracts—all of which lay the foundation for creating and maintaining an NDA-compliant portfolio.
Maurice Ross is a partner with Barton, Barton & Plotkin, LLP, and includes intellectual property and patent litigation among his areas of practice. He has been published frequently in the areas of intellectual property, patent law and the attorney-client privilege, and is proponent for using alternative dispute resolution mechanisms.
Author’s Note: Thanks to Miruna Ticrea for providing invaluable assistance with research.