When Given the Opportunity to Revise Work Contracts?

smurfeater asks: "I know this topic has come up in the past, but with the IT market as it is, it may be a good time to review. I have been working at my firm for over a year now and today they came to me with a Confidentiality and Non-Compete Agreement. To make a long story short...due to their SNAFU they are allowing us to modify the agreement a bit. What things should we ask to be included, excluded and what time frame should it cover?"

Comments

Get a lawyer.

[Anonymous Coward]

Ask Slashdot is definitely the wrong place to go.

Now would be a good time to hire a lawyer

[darthwader]

If you really care about what's in the agreement, then I respectfully suggest that slashdot isn't the best place to get legal advice.
I would either sign it if I didn't care, or spend a hundred bucks talking to a lawyer about exactly what should be (and shouldn't be) in the contract before I signed it.
Yes, it's expensive. But the free advice you get from slashdot is probably worth every penny you're paying for it.
Try to find a lawyer who specializes in employment law, of course.

Re:Now would be a good time to hire a lawyer

[Thing 1]

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I'm an associate for Pre-Paid Legal, a service giving access to attorneys. It generally costs $26/month (some states are less), and gives you a number of benefits including unlimited phone consultation, document review (up to 10 pages, which the work contract should be under), a free will, traffic defense, civil defense, and any services which aren't covered are offered at a 25% discount to the attorney's hourly rates (so anything not covered would basically pay for the membership after the first couple hours).

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Again I apologize for the commercial nature of my post but I hope that the service can be of value to you.

Better idea

[unterderbrucke]

Lay down and take what's handed to you.
You don't want them to give you an excuse to fire you in today's economic situation.

Re:Better idea

[mosabua]

Or they might fire you because you didn't provide any feedback and did not seem to care ;-(

Honestly, if something in your contract is important to you (and it better should) you better get things right.

And if they fire you because you had a suggestion/wish you might be better off not being there anyway.

Ask a Lawyer

[octover]

So it seems that Ask Slashdot has become Ask a Lawyer. Though I do have to admit that it is probably handy to hear what all the 'geeks' have to say before going to the suits.

Non-Compete

[MrResistor]

I have no problem with a confidentiality agreement, but a Non-Compete clause is pretty onerous, IMO. I understand the reasons behind it, but I think accepting it is basically agreeing to take it you-know-where, especially in the current job market where employers can afford to be extremely picky. In many cases they will only hire people with experience in the particular technology or application they're working on, so it's entirely possible that a Non-Compete clause would make you effectively unhirable if you were to be laid off for whatever reason, something which is also unfortunately likely given the current economic situation.

I think a reasonable compromise would be that the Non-Compete clause should be voided if you are laid off, with maybe some added details like it wouldn't be voided if you were fired for a good reason, like mooning investors or punching your boss or something like that.

That's the thing I would push for, but there may be other things depending on the specific wording of the contract.

That said, I wouldn't have a problem with a straight Non-Compete if the contract also stipulated a severance package that would cover me for the Non-Compete period.

The important thing to remember is that they can't force you to sign the contract. If they say they will fire you if you don't, then that is duress, which will make the contract very easy to get out of if you do sign it, and gives you an opening to sue them if you don't sign it and they fire you.

In short, make sure there's something in it for you, and if you do decide to let them screw you, make sure you are adequately compensated for it.

Re:Non-Compete

[Anonymous Coward]

it's entirely possible that a Non-Compete clause would make you effectively unhirable if you were to be laid off for whatever reason

Practically everywhere in the US, non-competes are unenforceable if the worker was laid off or fired. They're only enforcable if the employee quits to find other work. Most non-competes also have this as a clause, and if they don't you should ask for it just in case.

Re:Non-Compete

[bluGill]

Keep in mind that the courts have universially held that people have the right to work a job they are qualified for. In otherwords non-competes are the easiest things to break in court. Not only to you have to find a job with a competitor, but they have to prove that you took their non-public info with you. Not just that you know how the device works, but that you know how their device worked, and how they solved some specific problems with that device type. (and you can probably get away with knowing that something is often a problem so you design to prevent it, so long as you don't use something they have). Note that in most cases things you can't take with should be protected by either a patent or copyright.

Re:Non-Compete

[Anonymous Coward]

While you are correct in that NonCompetes are pretty much invalid, you missed the big problem...

How many employers will hire somebody knowing that they will need to go to court to get the NonCompete invalidated.... ...yeah, thought so.

Re:Non-Compete

[sigwinch]

Keep in mind that the courts have universially held that people have the right to work a job they are qualified for.

Unless they have been satisfactorily rewarded for not working. Which is for the judge to decide after listening to the former employer's $300/hour lawyers.

In otherwords non-competes are the easiest things to break in court.

Thereby squandering thousands of dollars and many hours of your resources. And proving to future employers that (1) you don't care one whit about honoring contracts that you sign--that you are a cowboy who sells out in a heartbeat, and (2) that you don't have the business sense to negotiate a reasonable contract in the first place.

My Contract

[Tuxinatorium]

1.) Cowboyneal will execute all my duties
2.) I will occasionally telecommute from tahiti to check up on him.
3.) I get 200k/year, and CowboyNeal gets minimum wage plus free mousepads.
4.) All rights reserved, biiatch!

Or at least, that's in effect what I would have if I were a millionaire and just threw all that money in the bank and lived off the interest on Daddy's Daddy's money for eternity.

Re:My Contract

[arb]

5) ???
6) Profit!

Work performed after hours

[DavidYaw]

When I started my job after greduation this past May, I tried to get a new clause inserted into the agreement, basically saying that if I worked on something on my own time, with my own resources, that didn't relate to something my company or their clients did, I would own it, not the company.

Basically, I wanted to be able to work on my own software projects on my own time, and not have to worry about my company taking ownership. Now, I should point out that at a company small enough where you call the CEO by his first name, chances of having your work "stolen" are nil, but having it would have made me feel better anyway.

In the end, I wasn't able to get that clause inserted, the CEO said that the lawyers had reviewed the current one, plus the companies we work for had reviewed it, so it wasn't going to change for just me. However, in your situation, where they are revising it for everybody, that would be the perfect time to get that inserted.

Re:Work performed after hours

[mosabua]

I totally agree with this.

You should get a clause signed that any work you do on GPL or Open Source for yourself or the company can not be claimed by the company as well. You can explain that this will allow you to be much more efficient (by using open source tools) as well as being able to get improvements back to the Open Source world. I did this for example with changes to a groupware system (www.phprojekt.com), a web mail system (www.horde.org) and a content mgt system (www.postnuke.com).

You should be able to push this through either in the contract itself. Or if that doesnt work, you can get a separate amendment for you only signed (for those silly standard contracts).

For sample contracts you can check out this page on the SAGE Australia site.

Re:Work performed after hours

[Anonymous Brave Guy]

You should get a clause signed that any work you do on GPL or Open Source for yourself or the company can not be claimed by the company as well.

Stuff that. You should be looking for a clause that says your employer has no rights whatsoever to anything you ever do that doesn't involve at least one of company time and company resources.

GPL, open source or whatever is totally irrelevant.

Re:Work performed after hours

[mosabua]

Sure. But in a addition I feel it is important that Open Source stuff remains open. Otherwise you cant really use any.

Re:Work performed after hours

[oliphaunt]

When I started my job after greduation this past May, I tried to get a new clause inserted into the agreement, basically saying that if I worked on something on my own time, with my own resources, that didn't relate to something my company or their clients did, I would own it, not the company.

This is one of those issues that is pretty important, and that gets handled differently depending on the state where you live, whether the contract stipluates local governing law, and how much of a stickler for details you really want to be.

For instance, in California the courts seem to recognize that work you do at home, on your own time, and with your own assets (paper, pens, PC, telephone line) is your own, regardless of the contract you sign with your employer-- as long as you keep the two sets of activities separate. So, if you happen to have an idea while you're away from work, on your own time, don't talk to anyone about it while you're at work, and don't use any company resources to develop the idea.

For a counterexample, Texas seems to accept any employment contract you can dream up at face value; I guess the idea is that if you're careless enough to agree to unfavorable terms, you deserve whatever treatment you get. So if you're in Dallas, and you sign something that says "All my base are belong to you," everything you think of really _DOES_ belong to your employer, whether you're on call 24-7 or not.

I accepted a job in California about 5 months ago, and I was presented with the Texas version of my new employer's boilerplate language. I read some stuff from old /. and findlaw.org, read some more stuff on lawmeme, and finally called a couple of attorneys out of the phone book. Here's a thread from that time on ask /. and this is my comment from that time.

I finally decided that several of the clauses, specifically the disclosure of inventions and the work for hire clause didn't apply to me --while they were perfectly legal, if draconian, under Texas law, they were unenforceable in California, where the work in question would be performed-- so I struck those lines from the contract before I signed it.

i think you need an attorney

[NateSac]

I could suggest a real good one too if your interested. Woohoo, one more referal and I get cupon for a free trial.

On my contract...

[cornice]

I modified my contract to be very specific. I can't directly compete against my company using information that I could not have obtained someplace else. So true secrets of the company are protected but I can actually go work for a competitor but I can't divulge trade secrets. How would my current employer know? Most likely nobody would know but right now a former employee is building a product line for a competitor using our artwork, copy, vendors, customer list, etc. That former employee and the new employer are in a bad spot legally and they know it. What I like is that my current employer is protected from blatant violations like this but we'll likely avoid the silly battles that go on when an employee signs away every right to employment. Yea, I know these contracts don't hold up in most states but that doesn't keep people from wasting a lot of time, money and energy on them.

Time is the significant part

[somekindofuniguy]

Try to get a time limit set on any non-compete clause. Your employer will likely want this to be a year or more, but in reality something more like 3 months is reasonable for you both. This gives your employer time to react to the fact that you've left, find a replacement, and generally cover his/her proverbial butt, without leaving you out of work for an untenable length of time. Note also that clauses that effectively prevent you from working in your field of expertise for significant amounts of time will probably be unenforcable in court.