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Modifying Employment Agreements?
An anonymous reader asks: "I am starting a new job, after months of unemployment. While out of work, I started a technology related business. I do not believe there is a conflict in the services provided by this business and the job I am taking.
As has been standard with previous employers, I have been asked to sign an agreement that states in part that I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company.
I also must agree that these same creations or inventions become the sole property of the company. I would like to change the wording to only include those creations, inventions and other Intellectual Property that is the direct result of work performed for the company, involved use of company property, and/or was created or invented during paid hours spent working for the company.
What success or failure have other Slashdot readers had when dealing with wide reaching employment agreements such as this? How did you approach management with your modifications?"
yeah, yeah, nobody likes dealing with lawyers. but trying to fudge a contract by yourself is a foolish proposition, especially an NDA. and you can guarantee that a) your employer will freak out initially -- they don't like ANYONE touching their NDAs and jeopardizing their precious IP and b) you'll probably screw up the wording and their legal team will reject your changes on that basis alone.
and if things you develop outside of work really matter to you, and you plan on developing something significant, it's worth the couple grand to get solid advice and contractual clauses that will hold up in a lawsuit. it makes sense and is worth the one time cost to protect yourself and your intellectual assets just like you'd insure your car or house in case of some unlikely disaster.
in fact, i'd ALWAYS recommend having a lawyer review any employment contract before signing, just in case. some clauses in employment contracts can be pretty sneaky or draconian but sadly most people just gloss over them and look where to sign.
i'm not a lawyer but am damn happy that i had one look over/amend my employment contracts before signing.
hope this helps.
-fren
"Where are we going, and why am I in this handbasket?"
Regardless of whatever advice pops up in this thread, though, the one thing that you absolutely, positively must do is consult a lawyer. Take the tips you pick up here and run it past said lawyer; they'll advise you as to whether or not they'll work and will convert the advice into legalese for you. If you can't afford a lawyer, track down the family member/friend that is a lawyer and ask/beg for their help.
Employment contracts are very, very important things that businesses take seriously. If you're not careful, you'll put yourself in a position where you could be sued without even realizing you'd done so, which is doubleplusungood. Get a lawyer to help mitigate this risk.
Assume that you're just as good at revising some lawyer's contract as you'd expect that lawyer to be at revising your code. Act accordingly.
Obliteracy: Words with explosions
You didn't cash on unemployment checks while you started this business, did you?
HIRE A LAWYER.
It's just one more reason I'm becoming completely unmotivated to work in corporate I.T.
I've been an "I.T. guy" ever since my first job, and frankly, I banked on "PCs and DOS/Windows solutions" as the stuff one needed to keep up with to retain a decent job.
Somewhere along the way (I think roughly around the time Microsoft started pushing Active Directory integrated with Exchange 2000, but that's far from the ONLY factor), I started becoming disillusioned with the whole thing. I had always tinkered with Linux as a curiousity and fun "alternative OS" to use at home - but couldn't spark any interest in it where I worked.
I decided to "rock the boat" a little bit, building Linux-based thin clients PCs out of old, depreciated systems being taken out of service, and asking employees to try using them on a "trial" basis. I had few complaints, and got most of the ones I did have ironed out in short order. (Mostly, people whining about needing support for their scroll wheel mice, stuff like that.)
I think it threatened my co-workers though, who were die-hard "MS only!" people. My boss was "on the fence" about the whole project, basically not wanting to stop me from experimenting - yet uneasy about it disrupting his little "happy family" of I.T. employees.
Next thing I knew, I was let go. By this time, the job market was quickly drying up, and I spent a long time collecting unemployment checks, and trying to find another, similar job to no avail.
I finally found work with Apple Mac systems. Wow, what a difference! Problem is, it's a small mom and pop place that's hanging on by a shoestring. My hours got cut back to part-time recently, because he couldn't make ends meet otherwise. It's really disappointing more folks haven't yet discovered the things Apple has done/is doing with OS X.
But anyway, here in the present, I see the I.T. job market SLOWLY starting to open back up, but when I read the job descriptions, my stomach churns. I don't even want to apply for most of them! It just seems like signing up to administer hundreds (or thosands?) of users on Exchange email while helping develop roll-outs of the latest MS technologies is like signing one's death warrant.
Obviously, there are still plenty of I.T. folks out there happy and willing to take on these jobs, risks and all. But maybe all my experience has made me too jaded? I'm about to throw in the towel. I don't have nearly enough "real world experience" using the OS's I see as superior solutions (Solaris, Linux, BSD, etc.) to get a decent paying job supporting/administering them. I spent too much time in the MS camp for that. I think I can handle the Mac OS X support quite well, but nobody's hiring for that. MS's current offerings give me the creeps....
CMDRTACO CHECK YOUR EMAIL!
You feel free to ask them to make those changes to your agreement. You also feel free to start sending out your resumes to other companies... It is highly unlikely that they are going to allow you to make these changes and keep your job.
Whether you like that or not, it is likely the way it will be. Sure, some people would say, "well I wouldn't want to work for a draconian company like that anyway." Some others would say, "I have been unemployed for months, perhaps I should take the job and swallow my pride."
YMMV.
Sounds like they're going to have an opening.
Unless you are of such high value to your new employer, I would doubt they are going to spend dollars money on their lawyer just to suit you.
Imagine your boss having to choose between hiring you and someone else who may only be slightly less qualified. The other person doesnt care about the contract but you do. Your boss also isnt the one making these legal agreements and in most companies has a snowballs chance in hell of getting them changed.
Odds are if you make it an issue they will go with the other person unless you really stand out.
First, it's going to be rather clear that your company was not created during your employment with this new employer. Afterall, it exists now and you haven't started there.
I'd expect that your new employer should already know of your personal business because it should be listed on your resume. Therefore, when they ask you to sign a contract saying that everything you create belongs to the company, you should ask for a specific rider that acknowledges that you have the outside interest, and that the company is aquiring no rights to that property. In exchange, you'll offer to promise that you will not work on that project while on company time or using company resources without permission. You can frame it in the terms of a disclosure as required by their contract of something you have created and will continue to create that has no relation to the company.
If the company thinks that just putting you on salary means they own your mind 24/7, then you likely don't want to accept their offer anyway. Unless you've omitted all mention of this project on you resume, they should have known you have it and intend to keep it. If they think by hiring you they're going get ownership of your small company...
Oh, and since the company no doubt had a lawyer create the agreement they're asking you to sign, you should have a lawyer create the document you're going to ask them to sign...
You could just teach them the error of their over-litigious ways by giving them the "rights" to the next thing you "create" after some cheap mexican food and seven cups of coffee.
Hire a damn good lawyer or look for another job. Employers can afford to be choosers these days...
The owls are not what they seem
When I just started a new job (simillary after being "excessed" from my previous company), the agreement I was offered clearly asked me only to identify things which relate to the companies business. That may be a California thing -- I think California restricts the claim a company can lay to it's employee's ideas.
But at any rate, there are companies which will agree to what you wish to ask.
dsojourner
and a pony.... I want a pony as well. I think you are about as likely to get a pony as you are to get a change in the standard employment agreement.
I got a similar form the first day of my last job. I didn't hand it in for two years. They asked again the day I was planning on quitting to start my own company. They refused to believe that it was a coincidence, but I never did sign one.
I was hired on at a place a few years back while I was in the middle of developing my own software product, and found that the hiring/HR staff were quite open to adding an exception for the program I was working on to the contract. Granted, that's not as free as what you're talking about, but they raised no objections. If you have the skills that they want, most employers are fairly open when it comes to stuff like that, as long as you're not dealing with lawyers in the negotiation process.
The question I would be asking is how would the react if you asked them to change it? Custom-tailoring an NDA to you raises a lot of issues that an employer doesn't want to deal with. It sets a precedent that they probably don't want to deal with either. Would it just be easier for them to find someone else to fill the spot then to bend over backwards to curtail your needs?
Quite frankly, you're being screwed.
No one in their right mind would sign a contract that forces them to hand over all work created outside company time.
IANAL, etc. The point is that you need a lawyer. This stuff varies by state.
I've done this several times now, with large employers and small, and never had a problem. Of course, if your situation allows, getting a lawyer to assist you is not a bad idea. But I usually just mark up the text of the agreement (you can usually get the meaning that you want by removing a couple words, making the changes minimal), initial the changes and sign the document, make a copy for my own records, and send it in.
Generally, all I do is delete a word or two to change it from saying that they get the rights to everything, regardless of whether or not it was on company time or company equipment, to saying that they get the rights only if it was on company time or equipment.
-Todd
"The details of my life are quite inconsequential..."
I have changed a couple. Tell them what you are changing and why, don't just change it, sign it and turn it in. If you talk to your future boss about it, they usually understand and can talk to HR about it and HR won't normally want to fight with another department about it.
As long as you don't add so much that the HR people think they have to consult the company attorney, they will just ok it. Consulting the attorney means work for them, so they won't want to do it, and as long as you keep it short they won't care. They just want all their paperwork back.
<high-level position here>
<name of stupid small company here>
Part of my agreement was to notify the company of any arrangement of matter created during my time with them. Given that this is ludicrous (I would fall into a recursive loop of telling them about the report I was writing about the report I was writing about the report...) and that they have no means of allowing for such reporting, I figured that thos part of the contract wouldn't stand up to formal legal scrutiny and would void.
But then I don't have other jobs, or ideas, so it's not too important.
When faced with the same situation about 5 years ago, I simply said "I'm not going to sign this".
I then had a talk with our human resources person and explained why I didn't want to sign it. The company then worked with me to come up with a mutually acceptable employee agreement.
Obviously this might not work at every company, but it won't hurt to ask.
BEND OVER. (+ 7: You're working for The Man now, buddy)
the success or failure when dealing with wide reaching employment agreements such as this depends how desperate you are to get this job.
well,
in my case it was pretty straight forward
when the company asked me to sign such an agreement I just asked for the changes arguing that I am a associate researcher at a local federal universisty and that my research has nothing to do with the knowledge i use at the company and they happly made the requested changes.
I don't know if that would go so well if my other tie were with a regular company. But I have my publications and even software developed outside the company.
-- SouNerd.com
My pal Burk, when confronted with the very same problem, simply did not sign the form, tucked it back into the enormous pile of junk he had to fill out when starting at this company, and just didn't mention it. They apparently didn't check to see if he had, because they never said anything about it. If a problem ever came up, he figured he'd ask them to produce the agreement, and point out that he he had never signed. It's a shame it never came up - I really wanted to see what would happen...
There is no God, and Dirac is his prophet.
This is absolutely ridiculous, in germany it would be illegal, too. You'd better look for a decent employer, I can't imagine what an asshole company this must be to even *think* of asking such a thing from their empoyees.
In today's I.T. market, I guess there are two major considerations to stick in the hopper before you decide:
1. Tinkering with this agreement could put you in a bad light with the new bosses. That said, I know a number of people who have significantly altered or rejected these agreements without significant fallout. Just keep in mind you are managing some "first impressions".
2. Each I.T. worker is very busy trying to just get the work of at least two people done and our bosses aren't much different. I have to wonder just how much time and energy these bosses would have left later for pursuing breach of contract claims against you at a later time. Reasonably speaking, if I was in the bosses' Johnston and Murphy's later on, it would depend upon the time and effort involved. Big breach, go after the employee. Little breach, let it slide, the next TPS Report is due on Friday after all...
In principio erat Verbum.
Depends on the size of the company and how critical you are to them. waht you are asking for is actually a fundamental of California state law, so it's not that unusual. But if it's a large company, not operating in California, these sorts of things are likely to be rather boiler plate and immutable. If they have to have their lawyers get involved, it may be more trouble to alter the agreement than it's worth to them.
something else is that it's not clear if such provisions are really enforceable. Much like the contracts that say you can't do anything vaguely related to your original field of employ in the next decade.
Regardless, paying a good lawyer for an hour of his time to review it with you and give you advice, would probably be money well spent.
This sig has been temporarily disconnected or is no longer in service
I do admire your sense of morality, and your desire to adhere to the agreement your employer is forcing you to sign.
However.
That clause doesn't exactly have your best interests in mind. You're not the first person to have that question, about that clause. Whats important is, you adhere to the spirit of the agreement---You dont take shit from work and release it as open source, and conversely, you dont work on a level editor for Super Mega Mario Pong World 3 on company time (or company resources). Similarly, you dont talk about your work in your weblog, and you dont spend company time (and use company resources) talking about your intensely interesting personal life outside of work.
Theres an unspoken agreement that most companies have regarding that clause. Adhere to the spirit of it, and be sure nobody gets hurt---especially them---and you'll be fine.
No sense in stirring up things, either. What they dont know wont hurt them, y'know?
Cheers,
Bowie J. Poag
You alter the contract, and if they accept it, then it's good.
I've been faced with many a contract that has crap to the effect of "we own everything you do whether before, during, after us, for us, or unrelated to us", and "you will not work in any field competing with us for a period of..."
I usually start by saying "I've crossed out all the unethical crap that you'd never sign yourselves..."
mindslip
When I was signing my contracts for the job I have now (have had it for three years or so) the initial contract had a very vague and broad reaching clause about what they considered a conflict of interest. I work for a web hsoting company and they basically said "anything that deals with the web is a no no for you". I said "there is no way I am signing that, it needs to say *this*". They accepted my modfided wording to narrow the scope to what we really do and all was good :)
Unstable Apps: Our Android Apps Don't Suck
First, in the current environment, you're not likely to have much luck in getting them to modify the agreement. These things are generally boilerplate, and deviations tend to have to be reviewed by the company attorney, which may be more hassle than they're willing to deal with unless you are someone they really, really want. I'd probably still ask, but expect a "no".
Second, if you create something on your own time, using your own resources, they will have trouble coming after you. Not that they won't, but generally speaking they will have trouble getting any kind of judgement against you.
Regardless, if you plan on persuing an outside project, get a lawyer specializing in employment law to review your agreements with the company. It will cost a couple hundred bucks, but it could save you some aggrevation down the line. Martindale is a good place to start.
I worked at a company that had a built-in waiver.
To my surprise, the waivers are based on State Law, and not US Law.
However, some companies are open to waiving specifc items IF you can define them well enough.
The defintion and description usually has to be specific enough that any change in concepts or implementation would be clear.
One way of nailing down conceptual ownership is to prepare an exhaustive definition and mail it to yourself by registered mail. You get all those nice official date stamps. Make sure they stamp the envelope wherever it might be tampered with.
Store the envelope somewhere safe, and if there is ever any doubt, show the envelope as proof of what you had before employment.
YOU FAIL IT!
Thank you for your time.
No, my name does not imply the fact that I like ZZ Top. Don't bother asking.
Yeah its a job, but its your soul too. You don't work for them 24/7. Therefore what you do on your time should be yours not theirs. Otherwise, demand that they pay for your groceries and your utilities. After all, you might have a thought at home.
1. As others have said...HIRE A LAWYER
Now, to make this go in another direction:
1. I wonder how legal these sort of contracts actually are. I can't honestly believe that a court would allow a company to owns its employees minds in their spare time. I have heard horror stories about employees being asked to turn over their own projects that have nothing to do with their works business just because their employer thinks they might be able to make a buck on their spare-time work. Has anyone actually challenged these in court?
2. What about discussing the legal ramifications of developing for Open Source software while having signed one of these contracts. Could the employeer claim that project in some fashion?
3. This is exactly why I hate corporate america....(rant)
What jackass hired a mental midgit like you who is unable to spell a simple word like "whether"?
You misspelled midget.
My job before my current job, I was able to modify my contract to state I had the rights to any software I created on my own time. I also had provisions stating that my own time was basically time when I was not working in the office (I had my lawyer put this in because I was salary and technically on the clock 24 hours a day). It was hard to push the the changes though, but being 1 of 3 people who knew how their software worked made it easy. My current job is with a huge corp. I am no longer a programmer so I didn't have to sign anything like that. I did have to sign a agreeement not to work at any other jobs that might hurt my job proformance for them. Im not sure what that means, but it hasn't stoped me from doing my small side jobs setting up new hardware and lans / small webscripting jobs for local buisness. None of this hurts my job proformance for them, as i'm never late and always at the top of the group. Its also not a competing buisness, so i'm not worried there. As said above, get yourself a lawyer. Hell, even if you weren't taking this job, you should always have a lawyer you can keep on retainer or at least a number in your wallet.
My situation's probably a little different, since I wasn't just hired at a new company exactly. The company took over a contract from my former employer, so I was probably in a better position to have some leverage.
Anyway, I'm involved in an open source project that doesn't relate to what I do at work at all, and there's no reason to believe they'd want to screw me, but I figured it was better to be safe. So after talking to the local HR guy, I wrote up a letter describing what it is I'm doing, what parts of the IP agreemenet bothered me, and what I wanted to be exempt from. The company ethics board reviewed it, saw no conflict, and gave me back a memo acknowledging my letter and stating their acceptance of my terms.
I didn't make a big deal of it, but it did throw the local HR people off a bit. They're not used to anyone questioning policy, but I explained the situation and they were understanding.
Now if I could just get someone to give me the diffs between the new ethics manual they just sent out and the old one, and tell me why it's so imperative we sign off on this one, I'd be happy...
Why would your job as a manwhore require such an agreement?
Crap, forgot to check anonymous.
...seriously you are not even on the payroll and asking for contract changes...
Power Corrupts,Absolute Power Corrupts Absolutely, leaving one person(group)in charge is absolutely corrupt.
I don't think I know anyone who isn't a contractor these days. But the long and short of it, as a contractor, you can do whatever you like outside the job because they are hiring you as a company and not an employee. A lot of companies love to hire people on contract rather than employee because they can renegotiate later. And the tax relief is great. Lets face it, nobody is an employee anymore. Job security was something our fathers got when they applied to the telephone company. Now we must be vigilant and look for multiple sources of income.
Good luck
What changes did your lawyer make to your contract?
You're probably not going to get your new employer to change the wording on the document with regards to allowing you to independently develop software while you're working for them. You should, however, exempt items you developed previous to your employment there. If the documents you're signing don't have a place to list previous inventions, make sure you have that language added.
I also agree with a previous poster that a lawyer is essential, especially if the contract you're signing is up for negotiation. A lawyer who works in the field will have a good idea of what is "normal" in these situations.
BTW, there's no need to tell your new employer you have an attorney helping you.
The best situation is to hire a lawyer for yourself but take care to have somebody who's not a laywer at your company (but still authorized to sign for the company) sign it. It will generally involve a few cross-outs here and there. Many of the claims on what you do on your own accord aren't legally enforcable, but it's still better to get things over when you start as opposed to having to answer to legal paperwork.
;)
My previous employer made the attempt. I consulted a lawer, had a few things crossed out, have them sign it, and no problems occured. You just have to paint yourself as a reasonable person and explain that you won't be using their resources or doing anything on company time, *ever* and it will probably just be open source hacking or whatnot.
A now-bankrupt publishing company tried to make me sign a really awful contract for some writing work, so I just walked away from the whole deal.
My current employer made no such attempt, which saved me much trouble. They also don't outsource, treat their programmers well, provide free lunch, etc. All hail the company.
Gentoo Sucks
Depending on your jurisdiction, the changes you want to make may be illegal.
I know that the labour laws in Ontario, Canada (where I live) and possibly California and Utah (USA) expressly state that anything you do 24/7 while being employed (ie, on payroll, drawing a wage or salary) is the property of your employer.
Since provicial/state laws cannot be overriden (legally) by us little people, there's no way you can modify the terms of your employment contract and still be legally compliant.
(In fact, even if you and your employer agree to do something like this, if you ever go to court for some reason, the courts may deem that there was no legally binding employment contract at all -- at which point the employer can sue you for everything they paid you -- and forget about anything that's owed to you.)
The only way to get around this is to offer your services to your "employer" as a consultant. This way, the employer/employee relationship does not exist (it's a vendor/client relationship), and they no longer own you and what you do in "your" time.
I was in a similar situation to what the original poster has mentioned, I had a written contract that the employer wanted signed that didn't fit with my expectations. I did what was suggested by the parent, and hired a lawyer to do the changes.
The problem was, the lawyer took one look at the contract and saw other points in the contract that needed to be changed, like getting paid for holidays in addition to the time worked and being able to book vacation periods at a reasonable time. A lot of work needed to be done to bring this all into line.
By the time I took the changed contract back to the employer and had them look at it, the employer decided that it wasn't worth it to sign a non-standard contract. In the end, the employer and I were not able to agree on this and other issues, so the contract was left unsigned.
As the parent notes, the situation is that when a change like this is proposed, there is always a backlash from the employer. But there are good reasons for this, since there are a number of issues that are raised. One, for example, is that if you were given the right to work with your own projects outside of work, then others may want the same privilege as well. Also, others may want to have other changes to the contract as well, and they will point to you as the precedent for this.
So I guess the bottom line of this is that to hire a lawyer to work with you on the contract is a good piece of advice, but keep in mind that you may not like the results.
These are the good old days you'll be telling your children about. Make them worthwhile.
What?
What?? Did I just read that correctly? You have signed away all rights to anything you create while you are employed by them, no matter if it was at home at the weekend or at work during office hours. Are you absolutely stark raving bonkers?
I'm left speechless that anyone want let this happen to them once, never mind at every single employer they've ever had...
the layman's guide to computer science
I have been asked to sign an agreement that states in part that I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company. I also must agree that these same creations or inventions become the sole property of the company.
Is this now boilerplate for companies in the tech sector? That's enough to scare the hell out of me. Is the CEO David Koresh? Locutus of Borg?
"We own you. You do something we own it. You think about something we own it. We expect you to bring your wife and kids and leave them with us. They belong to us now. You will adapt to service US."
Man, if things are that bad I think I would take up a less demanding profession, like panhandler, drug dealer or can collector.
to get them to change it. Maybe they will maybe they wont. I certainly would not work for such a company.
. I love the sound of burning women and screaming rubber....
If a company wants to own your personal time efforts, then they should be willing to pay you for your personal time at the same rate as your regular work hours.
To give in to a demand that your personal time creations are owned by the company reduces you to nothing more than a slave, with no property rights whatsoever. Western society escaped that viewpoint a long time ago, no matter what a work-contract may have you believe.
"And ignore anything and everything that everyone is saying here, even if it sounds like it makes sense; because in a legal context it might not."
Bill Clinton: Pimp we can believe in. - The Shirt!!!
Some companies appreciate your taking the time to negotiate and read through all parts of the employment agreement. It shows that you are actively engaged in the process.
I've actually had companies make major changes to their non-compete and non-disclosure agreements after my review of the forms. It probably depends on the firm and the lifecycle of the firm. I've worked in a few companies where the corporate lawyer was thrilled to sit down with an employee and talk seriously about the contract.
Conversely, if the hr clerk, or whoever you talk to, feel they have no control, they will resent what you are doing.
What I have done at several jobs was look at the contract, then just strike out with a pen the portions I did not agree with, along with initialing the strike outs, then making sure to get a copy of this modified contract.
I've found that often, HR people are too busy/lazy to scrutizie their forms to see if you've modified it in any way, thus it can slip through.
--- It's not my fault this post looks redundant. I just type too slow.
I don't think this is related to pride. He has an actual business on the side. Businesses make money. Since he is self employed, what he does for his other company is in danger of being considered "given" to the new company. This could result in his new employer receiving money from licenses granted by his old company.
Pride is not the same thing gobs of cash.
I am based in the UK. For a temporary contract (I have seem the same on permanent ones), there was a clause including the same terms as yours and an agreement not to undertake any other work without permission.
An offer of employment had been made and I was given the contract to sign. I explained that I did sometimes undertake other work in my own time and that this was non-negotiable. I provided them with a written letter stating this with the proviso that I would not accept any work from a client of theirs or one with which they had entered negotiations, and asked them to give me a formal letter in reply agreeing to this. Which I kept.
This saved them having to arrange a special contract and it was no loss to them. No issue ever arose but it would have served fine in a UK court as the contract allowed them to give permission for outside work.
This was a fairly small company however, without a massively beauracratical HR department. Still, it should not be a problem unless your company chooses to make it one.
I believe the US is a little more lawyer dependent than the UK however (so far).
If they don't accept it, keep pushing and keep an eye out for another job.
All this crap about most employers...
Until you vent your opinions preface it with "my guess is that..."
Meanwhile having delt with upwards of 20 companies on this issue I can say that MY experience is that they are usually amenable to change. Just ask.
There are some jobs that the company would not negotiate the NDC (+etc). For example, most companies would not let an R&D guy have an even distantly related outside business. OTOH, if you are the network support guy, they are not going to be too concerned about an outside interest.
There will be some companies that will not want to negotiate their agreements. If this is a junior position, it isn't worth it for them to get the legal department cranked up to mod the contracts. In one of my previous jobs it took 4 weeks to get a contract looked at by legal. If the manager has a choice between you and a guy that he can hire without talking to the lawyers, guess who he's pick.
You've already had plenty of advice to get a lawyer. Get one.
What has worked, however, is striking out certain sections (for instance, non-compete clauses), signing it, and turning it in. Now they must deal with it, and in many cases, they simply let it go. At the very least, if they are unwilling to allow it, they must come back and talk with you about it.
My experience with this has been with small companies, and it may work better under those circumstances. Large employers may be more resistant. If you try this, you should be prepared for them to tell you that you can not work for them without signing the standard, unmodified agreement.
These days, I am doing contract work, and push back on contractor agreements is more expected, and generally handled fairly quickly.
However beautiful the strategy, you should occasionally look at the results. -- Winston Churchill
each employer is of course a bit different, everything is negotiable and at least where i got hired (a company you may be familiar with for its allegedly disreputable overall business practices) there was a process that i could follow to try and reconcile their safety-net-worded statement, and my interests.
My opinions are my own, and do not necessarily represent those of my employer.
I know there is all that fear about them finding someone else because you rock the boat... Don't worry to much about that. Even in these tough times the process of hiring a new person is a pain. Because there are so many HR has to weed through hundreds and sometimes thousands of resumes to find someone the department manager likes. They don't want to do it again. And you are asking for something small that you manager will prbably be very open to getting taken care of.
I would recomend simply not sighning that agreement just yet and returning all the other paperwork signed for them. Then going though it with your manager.
The other thing is you could look into incorperating a personal software company to protect what you have allready created.
I will joing the rest of the chorus
Get A Lawyer!
When I started in the computer business (I'm in Britain) during the 1970's my first employment contract had pretty much the same provisions, anything and everything I invented 24x7 forever would be the property of the company.
Then during the early 1980's there was a precendent-setting legal case somewhere and as a result I got sent a contract amendment reducing the company's IPR ownership scope to a level most of us would see as more reasonable.
So the draconian terms in your contract could already be illegal according to your own local common law; if not you could still negotiate better ones. Either way seeing a lawyer couldn't hurt.
"Don't belong. Never join. Think for yourself. Peace." V.Stone, Microsoft Corporation
The version of the agreement you describe might make the company nervous, because it allows for the possibility that you could pick up all sorts of ideas at work and then use them on your own time on your own equipment.
If you're confident there's no conflict, underscore that. What might make them more comfortable is including a clause that gives them ownership of anything you create that's related to their business, regardless of where you were and what equipment you were using when you did it, but allows you to keep ownership of anything unrelated (done on your own time, on your own equipment, of course). After all, if you're on salary, there really is no such thing as "your time" vs. "their time", and I know I've done company work on my own equipment when it was more convenient; the only bright line you can hope to draw is "your business" vs. "their business". Offering to sign a "non-compete" agreement might help in that regard, though it could also tie your hands when/if you decide to leave.
http://alternatives.rzero.com/
sign an employement contract that makes ALL your inventions their property.
It seems to the be the standard bioletplate for a lot of employment contracts, but I've refused to sign 3 or 4 contracts for this reason, and never had a problem getting the employer to change it before taking me on board.
"Old man yells at systemd"
If you are, then the clauses that say "we ownz everything you do" are invalid. They only ownz things you do that are related to your job.
I just changed jobs too, and was aske dto sign one of these. Fortunately, the agreement only specified any "work-related" work, or anything created on company premisis or property. Exception was given to anythign previously existing. That is, if I had works that I started before coming here, even if insustry related, I could continue those works.
I found this to be a most acceptible agreement.
I'd suggest you suggest they make the agreement "California Compliant" - that is they limit it to work-related inventions only.
Enjoy. And good luck at your new place.
Especially if you want to continue to run your business on the side. Most employers take a dim view on that and their contracts may reflect that view. Have a lawyer check the contract, both for IP ownership-related issues, and how the contract affects your current business activities.
Don't be afraid to suggest and negotiate changes to your contract. They prefer that you sign the default one, since any changes will probably have to be okay'd by their lawyer, but if they really want you they might be amendable. I've never signed an employment contract without having made some changes first... incidentally, I made the changes myself, but had them checked by a lawyer afterwards.
Oh and don't fall for the old traps, like "We just want you to sign the standard contract; company policy, you know? Of course we don't actually enforce this". Or the rather popular "Don't you trust us?". You're entering into a business agreement; if you rely on trust, it''ll probably come back to bite you one day.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
The IP disclousure I last signed gave me the chance to list things that I was already working on, and wanted excluded from the 'give it all to the company' part of the contract.
The HR folks asked me to come up after I signed it, and asked some questions about the stuff I had listed (2 pages worth of detailed projects that I had going at the time), and were very pleased I had given them such a nice list of things they COULD NOT have.
No backlash, no fuss, just business...
You should be so lucky!
I had a few attorneys to look over it and generally speaking it's wasn't that expensive to do so. My company wanted me to disclose and list all the IP that I had before signing the thing. The idea being that anything I came up with after that belonged to them even if I thought of it at 3am.
I declined to sign it period. Two attorneys told me that these things never stand up in court and I mentioned that to my company's legal department. They didn't push the issue and I never signed anything. They are intended generally to send a shudder down your spine. I didn't sign it because if I know they don't stand up in court and the company knows it, what's the point?
However what I did start doing after that was copyrighting programs that I thought may be potentially valuable. I do a lot of programming of perl apps and have taken to copyrighting all of the valuable ones.
Does my company have a right to those apps? I don't think so, they can't produce a signed NDA.
'Just retype it, changing a few key phrases, and sign it. They can't have time to proof them all.'
I believe the correct grammar is "all your idea are belong to us."
I have signed two of these... one company let me include an attached amendment that said anything I do outside of worktime and unrelated to the company's business was okay.
s es .asp?ident=rsrc3
The other wouldn't let me change one word and it was a very restrictive agreement. I'd suggest checking this site for some interesting info on this topic:
http://www.prsa.org/_Resources/resources/ncClau
If the agreement is too restrictive it may not be enforceable should they sue you or the next company that hires you. A lot depends on your state's laws.
Bottom line, ask. It sounds like their documentation requests are reasonable... I guess it depends on if they intend to question everything you do or not.
When you get the contract to sign tell them you need to read it over and you'll get it back to them in a certain amount of time. Then make changes and initial your changes. Sign it, make a copy, and return it. If they don't come back to you then assume all is well. Then later if there is a dispute have them pull out the contract. If they signed it with your changes then you win.
If a question comes up, I think that your reasons behind the change are very good and if you present those reasons properly, the company should have no problem accepting them. I've changed contracts with companies I've worked for before, pointed out the changes to the hiring manager, and their response has always been, "Okay, sure, whatever, when can you start?"
I have been asked to sign an agreement that states in part that I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company. I also must agree that these same creations or inventions become the sole property of the company.
This is typical for any technical employee.
I would like to change the wording to only include those creations, inventions and other Intellectual Property that is the direct result of work performed for the company, involved use of company property, and/or was created or invented during paid hours spen working for the company.
If you're salaried you won't get that, period. Salaried employees who are paid to think do not have limited thinking-hours.
Salaried employees are also normally expected to have no outside work to compete for their time and attention, and this will be in the contract as well.
What you MIGHT get is explicit acknowledgement of, and permission to continue, your existing business. IP related to it is another matter.
In Claifornia, state law makes an explicit limit on inventions, something like this. If:
- You didn't use company property, facilities, materials.
- You didn't invent it on company site.
- You didn't do it during normal working hours.
- It's not derivative of proprietary information (company secrets or other company's secrets made available to you through the company's alliances and under non-disclosure),
- (and the biggie): It's not something in any of the company's own business lines or contemplated business lines.
then it's yours.
(IMHO this is THE reason high-tek is clustered in silicon valley: If you invent something outside your company's immediage and near-future plans you can drop out, create a new startup, and develop it.)
If you're not in CA, and they want you bad enough, they might be willing to include the language of the CA law as an amendment to the contract.
Regardless of whether you're in CA or not, be sure to:
- Report any inventions you've ALREADY made (with enough description to identify them but not enough to give away the farm) in the form provided, to be sure they don't try to claim those later.
- If you intend to continue your outside business, get permission added to the contract as an amendment. (You'll almost certainly have to put limits on it, too.)
- And if you can't get the CA-style exception, but DO get permission to continue the outside business, get an IP exception giving you your outside-biz IP, and drawing a clear line on which ideas are yours and which are the company's.
Recognize that, while you and they can agree on riders, and some companies WILL do that, riders like this decrease your value and increase your cost to the company. If you go too far, even if the company is willing to flex, you'll price yoursef above some other applicant and remain unemployed. You need to get a good read on the company's politics to guess how far to push, and be prepared to be dumped if you goof and push too hard.
Legal disclaimer: IANAL, your mileage may vary, etc.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
But that was a number of years ago when the market was more employee friendly. I simply asked them to remove the personal segments of it. Another company I just told them that I didnt want to sign it and they forgot all about it.
My advice and experience is of little value as it is really dependent on the specific situation and employer.
But I would say this. If your long term goal is your own business and this is to pay rent it may be better, although painfull, to walk away if they wont play ball.
A thread over at Perlmonks from a while back.
UNIX/Linux Consulting
Yes, consult with a lawyer who has experience in this field AFTER checking if covenants like this are even enforcable in your jurisdiction.
I have heard, and IANAL either, that many times employers can not control your creations made outside of the workplace even if you sign a contract saying so.
The only "iron clad" similar item that I know of are commercial airline pilots and it is a cap on their total flight time by the FAA, not any employer. IIRC, they can only fly 1200 hours per year at the controls of any aircraft per FAA Part 121 (at least that is what it was years ago). If they "cap out" because they were farting around in their own aircraft then their employer gets pissed. Okay, make this paragraph all past tense as I have no idea what they have to put up with now.
Eve Fairbanks says I drive a hybrid!LOL
Just ask. Explain your situation with a previously existing side business. You will be surprised how often you can get it, the glum outlook of the rest of the responses are in error.
." and proceeded to directly contract half the document and initialed it. I turned it into HR (after copying) who didn't even open it. I told my manager about it in an email I printed out and initialed, I think he was too scared to even acknowledge it and pretended he never got it. Note that I think recording that they knew I had changed the document was important.
You may run into a bit of a bureaucracy issue; it may be easiest to sign the aggreement but obtain from your boss a separate or paper mail stating that he is aware of the situation and it is not incompatible with your employment, or that he interrepts your previously existing agreements to be outside the scope of that document except for related work and work on company time, etc. Essentially he directly contradicts the employee agreement in writing (print out the email and initial it if it is by email -- often you can cajole someone into saying all kinds of stuff in an email that they would hesitate to print themsel ves.) Given that the majority of those employee agreements is unenforceable and often self-contradictory cut-n-paste from various templates, your direct communication on the issue will take precedence.
But only try that if just asking for the change doesn't work.
I have been in a situation with a hiring manager who refused to even discuss it and an HR manager who wouldn't give me badge until I signed. When I realized that the manager just was terrified of getting sucked into time wasting meetings with his management, and the HR was just scared of an internal audit revealing that some employee's folder didn't have all the necessary docs, I simply circled the relevant portions of the agreement and wrote in the margin "Clarification: I agree to this fully, except that it shall not prevent me from . .
The people you are dealing with are Organization Men. As long as you make it easy for them to genuflect appropriately, they will sell out their own organization. I'll leave unethical modifications of those agreements up to your immagination.
Keep these things in mind if you ever end up being on the other side of those employee agreements. If you allow your company to become too inflexible to openly accomodate various people's situations, then those people may be very expensively accomodated secretely.
So, what if your company fails and goes into debt? Does this mean that you can claim you no longer own the company and make your employer responsible?
You might want to hire a lawyer to reduce the risks of your own possible unclear thinking and writing, when presenting a "rider" to your new employment contract. Personally, I have never had any problems with retaining full rights to my own projects, prior or concurrent with a new employer, so long as they weren't subsidizing mine with equipment, personnel, software, "secrets", market access, etc. Even in the midst of a multimillion dollar corporate lawsuit, in which "noncompete" was at issue with my prior corporation, and I maintained other separate projects. The main issue in the conflict of interest is resolved by written full disclosure, and a mutually acceptable definition of the boundaries of any noncompete agreement. The agreements ought to be simple enough for you to write yourself, if you are competent in English and your own business affairs. Otherwise, you're probably getting into an inappropriate relationship, or an untenably complex agreement that neither side will respect.
--
make install -not war
IANALBMWS (but my wife is..)
An employment law attorney will probably have an amendment to employment contract on file that they can charge you a stock fee and possibily an additional billable hour. Sometimes the "stock form fee" is a minimum of a billable hour in itself. That's reasonable.
If you don't feel comfortable with a lawyer, ask for a referral to one with experience in this field. They are usually bound by their state bars' rules to honor that request. If they can't even give you a referral, run! =)
Don't think HR NEVER agrees to an amendment - a relative of mine was employed by a major defense contractor starting in the 50's, and they even pulled that in the 50's. He had no problem getting them to agree to an amendment to the employment contract for IP clauses. Your employer's HR should expect that the contract is negotiable. They have submitted their offer, now submit your counter.
Anyone seen my low uid? last seen 10 years ago while panning the #@$# out of Taco's 'web based discussion system'
If you're contracted, like I am, you set your own rules. I program pretty complex PHP/ASP backends for web sites, and work with a friend who designs Flash frontends. One of the first lines in our contracts that we have clients sign is we give them certain nontransferable rights to use the code like a normal software license agreement, since we often include and reuse many in-house written libraries. But they can't sell the code we write, they can't distribute it, they can't claim it as theirs, etc. We basically let them do whatever they want with it regarding modifying and adding on to it as long as it remains on their servers.
-- paper
So I and a lot of college students are in a situation where we work a part time programming job and we're working on senior design projects. I'm not sure if there is a formal agreement with the college (among all the stupid paperwork they have me fill out), but I'm pretty sure that they want some credit when it comes to my senior project. And I have a NDA with my part time employer. So who gets to own my project? Talk about the shaft.
of people like me. I just walked from my former job as the head of IT for a financial place, and guess who owns a huge chunk of thier IP? Thats right. Because it was also my company that subcontracted out to them to get this stuff created in the first place, I now own the IP for their entire operation. So I think it is fair to assume that most companies are trying to avoid situations like this.
Really, wouldn't creating new opportunities be good?
This is my sig.
Having worked as an Independent consultant for over a decade, I've amassed a veritable treasure chest of technology and methods on my own dime.
;)
If you have something of worth, propose licensing it to them for a small percentage -- if its something that you're passionate about, then forget the royalty, and get paid as part of your regular work to improve it
Even better, make it open source, and encourage them to take 'ownership' in it, thus providing a marketing/advertising channel for them (via sponsorship)
But yes, its always better to make/request the changes up front.
Make no mistake, this is a business, and most businesses are about money.
Case in point: I refuse to sign any contract that has "acts of god" in them, unless the company can guarantee that they can produce one for me to cross-examine should i need to. Whenever I get push-back from an agent "this is a standard contract.....I don't know if we can change this....blah blah blah" -- I just tell them I will be happy to pay another firm that is less theological in their approach to contract law -- it usually requires an extra day, but it always comes back with "force majeure" or something less offensive
Old age and treachery almost always overcome youth and skill.
A copy of the law can be found here.
The many body of 2870 is below. 2872 requires the company to notify you of this.
-bri
Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
Result from any work performed by the employee for the employer.
If they are a reasonably competent tech company, they won't go for any changes. Just the fact that you want to make changes would make me hesitant to hire you. The changes that you are wanting to make say loud and clear to an employer "This guy is looking for a job to hold him over until he can start his own company." The tech business is so competitive these days, and a company has to make a significant investment you also.. don't forget that. Just my two cents.... but I wouldn't hire anyone that I thought might give me a problem in the intellectual property department.. I've worked too hard to build it at my own company. If you want to start your own company, then I commend you for that, but maybe you should get a tech job that is totally unrelated to the work you intend to start your company with. As long as you do this, there should be no problem with a non disclosure/ non compete agreement. The only circumstance that I would consider modifying the agreement is if you were to bring something very valuable to the table.... but for a standard set of skills... don't think so.. good luck :)
Many times, These are just boilerplates obtained from HR software or previous companies. I have had occasion to change, and add, to employee aggreements.
Did I hire a lawyer? Did I freak and farm my resume some more and never return their calls? No, I Simply asked them if I could modify it. The response 2 times out of 3? "Sure, that's just what we had at my last company." Just make your change, initial it, and let them know.
If they have a problem, they'll tell you. If your tin hat gets in the way, let them know you want a lawyer to proof it first. We all know how important it is to protect our million dollar ideas. Let me know when I have mine please.
--
This sig loves its mama
As in an LLC/S-Corp/C-Corp? Does the contract prohibit you from working for another company (i.e your own company)? Have the company you own (i.e. you) right a work agreement that any inventions "you" come up with are property of your company as long as they are related to your business. This way if you are allowed to work for both companies you can claim that the other company (your company) already has an agreement as such so that only inventions relevant to the second company could be considered their IP. Just a thought...like other people said, HAL
"Look Lois, the two symbols of the Republican Party: an elephant, and a fat white guy who is threatened by change."
Do you like ZZ Top?
I ask because of your handle: ZZT2
Thanks!
here tested it this time, sorry
Creationists are a lot like zombies. Slow, but powerful and numerous. And they all want to eat our brains.
I'm not trying to be cute here. I once was faced with a stack of paperwork about half an inch high. By the time I had read everything, I figured I could sign everything but the NDA which was just totally ridiculous. I told HR that the NDA was not Ok in its current form and that they should get me a new one. I never heard back from them until they noticed that it was still unsigned when I left the firm more than a year later.
..not everyone can afford a lawyer. I recently started a new job that had a very inclusive IP clause, basically stating that everything I did, whether related to work or not, belonged to the company. I asked them to modify that to exclude any work done independent of company projects and done using only my own time and resources, or to give me a signed letter from the CEO stating they would not pursue ownership of IP I developed independently.
Ultimately, they amended the agreement. They weren't trying to gobble up IP that their employees might work on in their spare time; it was more of an anti-compete clause to prevent someone using their internal knowledge of projects to develop competing software. The new agreement was acceptable to me, and we were able to move on.
The bottom line, though, is not to just accept what you're given. If they've offered you a position, they want you. Along with that comes accepting that you are an individual who may have your own ideas and projects, and they they simply do not own you. I fought for my rights, and so should you.
Since verbal contracts are binding, why not just be truthful with the employer and mention to him that run your own business on the side "here's what we do", and stuff. Let him know this is something you do on YOUR TIME, not HIS! If he agree's, you're covered (check local state policies of course).. Besides, unless your idea makes you millions your employer definitely isn't going to spend $$$ chasing it. If your idea could be worth real money, you really should put a PATENT on it BEFORE they hire you..
Mod +5 Drunk
Sorry to say, these things are *standard* at any company with, say, more than 15 employees.
If there are venture-capital people involved, EVERYONE including "employee #1" has signed it. You can be 100% certain about it.
You have to be very lucky, or work in academia, to avoid this shit. I can't believe there was a time when Sun employees filed their OWN patent claims.
Welcome to the new world order.
Was this "form" and notice of it being required to sign. made as part of the offer letter, or after you accepted the job.
If the form was part of the offer... Then you can negotiate it, prior to accepting, ask first generally they will adjust, get a lawyer to finsih as needed.
If notce was placed in the offer and you did not ask it see a copy until you showed up. You may be screwed, so fine a good local lawyer.
If you had no notice until you showed up on the first day of work, it a lawyer, they are trying to change the terms of employeement, basiclly black mailing you into a position. Get a LAWYER.
As you see the outcome may be good or bad depending about what you know or when. But in all cases you should come out better, with a lawyer.
This is the very reason we need unions. With a union aka collective agreement we can protect our own intellectual property from being shanghi'ed by big corporations.
I'm not sure why you would ever expect a company to allow you to develop possibly competing products, especially when you are doing R&D on their time, honing your skills on their time, and enjoying ALL of the perks of their time.
Your employer, believe it or not, has gone out on a line in many cases to provide you with a fair amount of amenities (health care, a paycheck, security, work atmosphere, etc.). The business owner has no doubt laid down his/her own life/success/money to start the business, assuming all the risk.
You can't assume a baker to figure out a recipe, build a restaurant, market the product and then allow someone to start a restaurant on their own, borrowing many of the intellectual-elbow-grease-earned property of his/her business.
Either do as they did and get with the program (in business) with much risk but high reward, or lesson your risk and do the J-O-B!
I'm a business owner...can you tell????
SAGE has sample employment agreements online for just this purpose. It gives legal examples to use to add to or modify your existing employment agreement: http://www.sage-au.org.au/osda/
PepperHacks - Hacking the Pepper Pad
GW Bush hasn't done anything that anyone with a brain wouldn't have done. Enemies of this country like to point out that GW has no brain, yet he has consistently and intelligently dealt with the terrorists. The best intelligence we had showed that Iraq was a problem, and you know what? Iraq was a problem. With the American presence there, the entire Middle East will become much more stable. Liberals decry the export of American culture overseas, but we need to export a few more American values overseas if you ask me. Many of the most troublesome countries in the world seem to have problems running themselves, and they never fix the problems. This becomes our problem, and it costs American lives. GW is doing the right thing, and I'm proud to say that I'll vote for him this year.
--Guns don't kill people, abortion clinics kill people.
Rightly or wrongly, what I typically do with these is "forget" to sign them. I even go so far as to not include that sheet when I return my new hire packet to HR. I've never been asked to sign it, and no one has ever asked about the missing sheet.
This has worked with the last 4 companies I've worked at over the past decade. Maybe it's just luck, or what not.
I'm not sure of the ramifications of this method though. Maybe someone with some legal background can tell me why this would be bad or worse than changing the standard contract to something more beneficial. It seems to me, that without any signature on that portion of the employment contract, there's nothing stopping me from even developing stuff on the company dime (not that I do that.. and in fact, my current company has great incentives to patent stuff in their name, which I have done.)
I don't have any fundamental problem of assigning rights away to stuff I develop with company resources (even non-loss resources that don't affect the company measurably). However, if I develop something outside (say at home) with my own resources, it's mine, plain and simple. My not signing the contract, could that come back and bite me in the ass if I develop the next big thing, or am I pretty much covered if I make a million bucks and my company says they want a piece of the pie... and I tell 'em to stuff it and show me a contract where it says I have to give it to them (and they can't produce it obviously)?
Anyone know?
I have been asked to sign an agreement that states in part that I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company.
LOL
I also must agree that these same creations or inventions become the sole property of the company.
Unenforceable, especially if you're in California. (IANAL) Get an IP attorney.
What success or failure have other Slashdot readers had when dealing with wide reaching employment agreements such as this?
Well, my response was "Hey boss, take your agreement and park it, up left and sideways."
Business isn't willing to pay for products, innovation and careers, so we get brands, mortgage commercials and layoffs.
While working for the same company, a year or year and a half later, the company came up with a new NDA and asked everyone to sign it. I don't know how many people did - but I know that all of the programmers I talked to said that they refused. I never signed it. I sent it back unsigned, with a letter explaining why, and never heard anything back.
Some companies will ask for everything, and accept something more reasonable. Some probably won't. In todays market, with lots of coders out of work, the companies may be harder to talk to than they were in the past.
The employer will either..
1) Accept it
2) Replace it with something you both agree with.
3) Show you the door.
I've been offered two contracts with this kind of language and in each instance we were able to negotiate something we both felt comfortable with. Also in both instances the first thing they said was just ignore that part of the contract. It was only after I crossed it out they were willing to negotiate. You don't need a lawyer for this. Tell them what you do on your own time and have that excluded.
and here's my advice.
First, as everyone says, get a lawyer to look at this. Mucking around with this stuff without that is asking for trouble.
Second, you need to figure out if you are willing to work at a job that won't allow you to make these changes to accomodate your outside job. If you're desperate for a job, you may say yes to that question. I was unwilling to when I did it. You'll see why this is important in a minute.
Now (and this is all what my lawyer told me, so this is second-hand) these contracts involve only you signing them; the company itself does not sign them. (In my situation the intellectual property agreement was separate from my actual job contract, that may not be the same for you, in which case this might not work.) In that situation, you are agreeing to be bound by their terms, since this is pretty much a one-way deal. What that means practically is that you can make whatever changes you want to to that document before you sign it, since you're the only one who needs to sign it. It's basically stating "this is what I agree to," which is different than what they proposed.
Then it goes to that employer, who needs to look at that and decide if they are willing to accept the changes you've made or not. If so, it's a done deal, and it's relatively easy for them because they don't have to sign it. If they are not willing, they can come back to you and tell you that. Then you have to invoke your decision from above and tell them if that's a deal breaker for you or not. I tend to think that the smarter the company, the more likely they are to not care about this, but that's a gross generalization.
As a last point, you may need to do a reality check and see if what you're asking is reasonable. For instance, if you work for a video game company, and you also make video games as your business, no company in their right mind is going to agree to that. It would be obvious to anyone that there will be a seepage of intellectual property there, or at the least you would be operating without their best interests in mind. If there's no crossover, though (I was working on computer stuff but got hired as a doctor, and they were more concerned about biomedical research than web sites) then it shouldn't be a problem. You can still try and get away with the first one of those, but don't be surprised when it fails.
But I'll have to speak in general terms and not give specific advice.
The changes you want are reasonable. Few employers should object to addressing your concerns.
However, consider on the one hand whether you have any IP worth worrying about (be honest), and on the other hand whether your employer might have a legitimate reason for such a far-reaching provision (for example, they are going to be teaching you a whole new way of looking at whatever your field is, and no reasonable argument could be made that you could invent anything related to this field without using the knowledge they're going to be teaching you).
Hiring a lawyer is not necessarily the solution. What you are seeking is not a legal clarification but a change in terms -- you don't need a lawyer for that. Once you have substitute language, you may need a lawyer to tell you if the language addresses your concerns, but you're probably smart enough to figure that out yourself.
Actually, since you're not being paid for work you do outside of company time, any such demands could constitute slavery and be unconstitutional under the Thirteenth Amendment. Of course, since you signed the contract, it would effectively be voluntary. So, my advice is, do not sign that contract!
It is a disgrace that companies can claim ownership of your thoughts, though.
I didn't like the clauses that says they get all your patent rights on anything related to the work you're doing, or anything related to the design/manufacture/proceedures etc on the work you're doing, and both the temp agency and the company get dibs first etc.
So I tried to amend the contract. They basicly kept stalling and stalling and telling me they'll have it any time now and delaying my start date. Finally I started pushing buttons and they said "Oh well that has to go through legal at the national office so it'll be a few months before they can review what you want."
So now I'm out looking for my own work again.
To be honest, I really don't mind giving the company any invention I come up with directly related to my job at hand. Even good ones. But if I'm doing some peon job and come up with a great idea totally unrelated to the performance of that job and they claim it as theirs, I'd be pissed.
Introducing the new Occam Fusion! Now with sqrt(-1) fewer blades!
+1 to the comments about obtaining a lawyer: remember that legal advice on /. is worth what you pay for it.
To add from my own experiences, DON'T just go making amendments to the contract and expect the company to sign it without talking to them first: most contracts of this type that I've signed contain a clause that indicates that changes made to the document are invalid unless specifically agreed to by both parties. This may (IANAL, depending on location, etc.) mean that they can sign the document with your changes on it and send it back, but your changes will not be valid and can be ignored, because they didn't agree to them specifically.
My $0.02: talk to them first, see what can be done, hire an attorney if you're going to make changes (or at least have their proposed changes reviewed by one). Good luck...
In my current job I simply crossed out those portions of the contract that I did not agree with, namely non-compete, authorization to check my credit rating, etc. and signed the contract. I also pointed out the sections I deleted and why to the HR officer. He really didn't seem to care.
In fact, every job I have had since high school that required some form of a contract got a thorough read and some modification. Not once have I just signed anything put in front of me.
Maybe I am just lucky that no one actually reads these things after they're signed.
Many (but certainly not all) employers, would understand you wanting to protect existing business. But their lawyers will feel a lot better if you are specific in what you want to exclude. They may worry about you creating a program that is really necessary or obvious for one of the employers projects, then claiming that you have rights to it because you did it after hours. On the other hand, something that specifically mentions the work that you are talking about is much more reasonable.
Another point: I wouldn't stress how much time you will be spending on these other projects. It may make the employer wonder where the bulk of your attention will be placed.
And finally, for people who have already signed such an agreement, some companies have a policy of releasing specific items, provided they are deemed not applicable to the mainline business. Xerox used to do this quite regularly.
==--------==
Together, we will drive the rats from the tundra.
A few months ago, I performed a for-sale-by-owner home transaction, without agents or lawyers on either side. We signed my state's standard contract, then several addendums to shore up the few things we needed clarified.
Any lawyers or HR folks wish to comment on how this would work? Heck, with this approach, there could be boilerplate addendum (complete with checkboxes, like on real estate contracts) drawn up by some altruistic lawyer and released to the public domain to help out people like the OP.
Method of processing duck feet
Is this a small startup? Or a major company? That's a critical difference. At a small startup you're incurring a lot more risk, and your potential employer should be willing to negotiate a little.
At a bigger company, good luck. Even though the risks may be as high, the HR clerk you're working with won't want to discuss it. Either take the job and deal with the contract, or look elsewhere.
While I might be in the minority on this one, I still find it amazing that my company, or any other one complains about people doing stuff on the side inside of any work agreement or contract: especially for programer types.
.NET), pick up a damn book or something. :-)
Now, if it's DIRECT competition, then I understand, but if you're just a code monkey slinging code for a non-computer company and want to do things on your own, then then is a bonus for that company.
The more you do, the better you get at it. If I simply relied on learning new tech or programmer during my day job, I wouldn't know nearly as much as I know now by also programming outside of company time. Any experience gained outside of work time benifits the company, not hurt them.
Hell, I wish they'd make it manditory for people to do outside projects every once in a while. All these crufts sitting in there cubes thinking the company should send them to training bugs me sometimes. For the love of pete, if you want to learn something new (html, web, perl,
"Of course, in that case, they could lawfully fire him on the spot with no compensation since the employment agreement was almost definitely contingent on his signing of the NDA."
They can lawfully fire pretty much anyone on the spot with no compensation (assuming this is the US) anyway.
But lets play out the above scenario... you're a really good employee who never signed the agreement. Okay. Assuming they decide to look in your file (and they won't) They won't fire you for this because they'll assume it was just an oversite on everyone's part and ask you to sign. At that point, you can look shocked and say "Gee, this seems okay, but I hate to sign stuff like this without a lawyer....can you give me a week or two?" And they'll be willing to negotiate. Why not...you always make allowances for good employees.
On the other hand, if you're a crappy employee anyway, they're looking for an excuse to fire your sorry ass, they'll fire you. But you never signed an agreement, and you've probably worked there a year anyway. And be real. If you get fired for not signing the agreement, you were about 2 weeks away from getting fired anyway.
A few things to keep in mind:
1) You're never "owed" severence, and in many companies its unusual to get severance
2) Whether you get fired or not depends a lot more on your worth to the company, not whether you signed some employment agreement.
3) You can't have it both ways... you can't bring up the agreement as an issue and *then* not sign, because you've made it an issue. You've just got to not sign it and hope the woman in HR never notices.
I'm signing this as AC, primarily because I don't want my company getting funny ideas and trying to make me sign after more than a decade on the job. Heh.
Also, it helps to be aware of the laws that govern your case. In many countries/states etc you have rights independent of what you have signed. Know these so that you have something to fall back on if need be.
Engineering is the art of compromise.
IMHO, unless you're going to lose your house, family, etc, don't take this job. Take something that'll sustain you until you find some people less draconian.
Trust me.
-- I am. Therefore, I think!
Many bosses don't want boat-rockers. Someone who niggles about contracts may be the same guy who pulls out labor laws every time the boss wants 5 minutes of overtime - or the same guy who is constantly pushing his own way of doing this, that or the other.
Especially at the beginning of a job, many employers want some reassurance that the new guy is going to "submit", fit in, and concentrate on company work.
Depending on market conditions (and they don't sound good for this guy), I'd keep all of this very low-key. No lawyers, and no big confrontations - unless he doesn't need the job.
Let's not stir that bag of worms...
This is a standard ploy used by many companies. Basically, they are trying to get what they can for free. If they ae truly interested in hiring you, they will be willing to strike the language. Otherwise, believe me, you do NOT want to work for that company. Consider... in your off time you decide to fix a kernel bug in 2.6. According to the language of that contract, you would need to notify your employer about what you did, and basically hand them over the copyright for the code that you added to the linux kernel. Uh... just say "No".
Drinking habits can be dangerous. You can choke on the cloth and the nuns will wonder where their clothes are.
Another reason to consult a lawyer is that many states restrict how much the employer can appropriate from you. If you tell the employer that you won't sign it because "you can't do that in this state" may be better received than a "hell, no."
An example (which may or may not still be the law in California):
CALIFORNIA CODES
LABOR CODE
SECTION 2870-2872
2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
2871. No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment. Nothing in this article shall be construed to forbid or restrict the right of an employer to provide in contracts of employment for disclosure, provided that any such disclosures be received in confidence, of all of the employee's inventions made solely or jointly with others during the term of his or her employment, a review process by the employer to determine such issues as may arise, and for full title to certain patents and inventions to be in the United States, as required by contracts between the employer and the United States or any of its agencies.
2872. If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.
Employers can be human too lol. You have to remember that a lot of the time the managers and HR people dislike much of the contract language just as much as you do, and the contracts were drawn up by outside legal people. Those actually doing the hiring and who will be working with you on a daily basis have little to no stake in harsh restrictions, it's only the lawyers covering their asses by excluding anything and everything. I've found in the two times where I had the need to do so that management was more than willing to make common sense rider exclusions to hiring contracts.
Even if company is offering an unenforable contract clause, you still shouldn't sign it without an agreement that it doesn't apply to you. Afterall, if they sue you or your next employer, it's going to be a messy lawsuit that'd become a whole lot quicker with that invalid clase taken out of play immediately.
I would like to change the wording to only include those creations, inventions and other Intellectual Property that is the direct result of work performed for the company, involved use of company property, and/or was created or invented during paid hours spent working for the company.
For many kinds of software and management jobs, there is really no such concept as "during paid hours". So, it doesn't make a lot of sense to talk about what you do outside those hours. And, from a purely practical point of view, the company just won't agree to it.
What you can do is ask for is a specific exemption for that particular project. You and your company would have to sit down and specify carefully what areas you can work in.
If your outside work overlaps substantially with your new employer's business then you can forget it. They aren't going to agree to letting you work outside in the same area you work for them (and they would be fools if they did).
A quick dose of reality from the management side:
As a CTO, I've personally hired hundreds of people into technical roles, and have been in involved in hire/no hire decisions for many hundreds more.
The bottom line on candidates who want to make changes to the employment agreements is very simple: unless we're talking about the sort of superstar who is entitled to write his own ticket (e.g. someone who is in the world's top ten in his field), there is no way we will spend the time to haggle this sort of thing out. Next!
If the candidate brings lawyers into it, it's over even faster.
One of the most valuable services that lawyers provide, in addition to sound legal advice, is shielding you from being the bad guy. Instead of having to argue with your new employer, you can be the nice guy, while deferring to your lawyer's judgment:
Then when you return to discuss the we-own-all-your-IP clause, you're not the bad guy: See? Now you're a great position. You've been nothing but reasonable. If the company doesn't want to make the change, they're the bad guys. They will look like they want to lay claim to all of your work while paying for just a portion of it. You'll be in a great position to argue for your change or, better yet, have your attorney do it for you.Attorneys are essential for this kind of thing. Use them for their legal advice, and use them to keep yourself above the fray.
Easy, automatic testing for Perl.
Pull down your pants.
Bend over and touch your ankles.
Scream, "THANK YOU SIR MAY I HAVE ANOTHER!" over and over
We all laugh at the people that cringe around a computer. After reading all these responses I see our community has it's own fears... Modifying an NDA is not alchemy, wizardry, or even hard. For the most part the HR geek will frown and refer to legal, who will say, "Yeah no biggie and actually make the change FOR you. I did that at the company I work for now. I mean a lawyer is always a smart investment, but don't get all bound up over it.
Woohoo, dude you *ROCK* and your random formulaic anti-Bush trolls are going to *CHANGE THE WORLD*. W00T!!!
I had to do this just last year at the company I work for. They wanted me to sign a "we own everything you create in and out of work" agreement. I naturally balked at this. I simply asked them to change it to they own anything created on company time or directly related to the company (to cover them in case I made something extremely similar to what they are making at the same time). I had to explain why I wanted this to the HR person (to which I simply explained that I have a web page, and the way it was written, they could make me alter anything up to and including my personal web site just because they didn't like what it said, even if it was not related to work). They had no problem with my revision and made the changes and I signed the form.
That said, if they refuse to make reasonable changes, you probably don't want to work there. It sets a precedent that they feel they own you and you will do as they like or else, and that is a very bad precedent to have set before you even start working there. If they feel that way now, what will they be like once you are actually their employee and have signed the agreement?
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
It sometimes does not take a signature to change a contract.
If you sign a document with some crossed out clauses and they start your employment, they may be implicitly accepting your contract changes. In UK law, and probably in other jurisdictions, there is a "last shot" effect in contract law, especially if you manage to receive your first paycheck under the terms you last agreed to. It strengthens your hand once you receive consideration for work performed under the last agreed terms.
You have to be careful about this though - it doesn't always apply.
Donte Alistair Anderson Roberts - hi son!
Karma: Chameleon
The bottom line is that if laws always supercede any contract you sign and if the contract comes in conflict with the laws it cannot be enforced. And, there is such pesky thing they call "Bill of Rights" which protects your right to free speech and privacy.
More specifically, if your company is using an open source project as the framework for one of their applications and you make changes to the framework (ie. fixes, enhancements), how does that work?
Let's say you fix a bug and release it back to the opensource project. By def'n of most of these contracts, that work should belong to the company and you would be breaking that agreement because you released it to the public.
I wonder how many people have done this and not realized that they have broken the terms of their contract. It's this type of stuff that probably started the entire SCO mess.
I have had good luck modifying such contracts and getting the bogus stuff removed or reworked.
A few points - first hire a lawyer - it will cost you a few bucks, but should be less than $200. Go over it with them and do not mention the lawyer to your potential employer.
Once you sat down with the lawyer and reviewed the document in person with them you have a shopping list of things you want to change. Then set up a meeting with the HR person or boss or whoever will have the authority to make the changes on the company side.
In the past I have explained about having a friend who got burned by a over reaching contract such as this. The company went under and the bankruptcy lawyers were trying to lay their hands on anything of value including the friends open-source project. Of course once they got hold of the source it was worthless as it was only of value when it was freely given away. So in the end no-one won anything. Once you've given this kind of little story they are more sympathetic to how you just want to CYA and prevent any potential future uglyness just as they want to cover their assets and prevent any future problems.
In some (several) states, agreements that attempt to get your work even in out of company time and property are illegal - but that doesn't stop lawyers from using the broadest language possible because they know that it will just get narrowed down to what the law allows. Unless there was "willful" over-reaching (i.e. something almost impossible to prove for a reasonable amount of money) the court wouldn't throw out the whole ageeement because of it.
One other thing to watch out for is some language to the effect that the contract should not be construed as being drafted by either party. I forget the term, but there is a legal idea that in the case of ambigious language the interpretation goes against the person who drafted the contract. This way the drafter shouldn't purposefully put in ambigious terms. And - it is assumed that the person writing the contract is probably a lawyer and has better knowledge too. By putting in a clause that the contract is assumed to not be drafted by either party they tip the scales back so that anything ambigious is to be weighed based on other terms, not against the company.
Good luck!
AOL have this same type of setup in there contracts
question is, if I wrote a virus does this not mean that AOL owns that virus as I've *invented* it while working for the compnay?
same goes for any company surely?
Those NDAs were most important in the 90s when every tech thought was worth a BMW. You can negotiate now somewhat easier. Good luck.
" And pray tell me what was wrong with Carter?"
Carter was a decent, warm human being. I would love to have him as a next door neighbor, as my kid's sunday school teacher, as a role-model in my and my family's life.
Those aren't necessarily the best qualities in a president. He was clueless on domestic issues (18% inflation, his handling of the oil crisis was pretty dumb, and his whole "malaise" thing was stupid...blame the country for his policy failure), and he was seen as a pushover in foreign policy. He didn't know how to properly project US power.
Don't get me wrong. Jimmy carter...great guy, but lousy president.
First, I do not like the idea of companies laying claim to off-hour creations. That is ridiculous. At this point it is very redundant in this thread to say, "Get a lawyer to make the changes", but the recommendation is a good one.
As long as you are asking a lawyer, could you ask another question: Do these agreements give companies more liability than they realize?
Companies ask employees to give up their IP such that the company would be able to profit from off-hour employee brilliance. Consider the case where off-hour employee brilliance leads to creating something that does a lot of harm in the community. In turn, that harm leads to lawsuits. It seems to me that the employee could pin the negative consequences to the employer.
Clearly companies are responsible for on-hour actions good or bad - within reason. On the good side patents and copyrights can lead to new revenue. On the bad side new products can violate other companies' IP and lead to financial penalties. Do agreements like the poster describes cause companies to take on the same potential risks and rewards for off-hour creations?
Sounds like a situation ripe for abuse by all parties involved.
When I signed on at IBM, we had to sign a similar agreement. If this is who you are preparing to work for, be advised that the issue is not open for negotiation...They will absolutely, positively NOT hire you without that agreement, unmodified, having been signed. A couple of friends' offers were dropped in similar cases.
Although, I suspect you are either the odd nice guy manager type or just recently promoted so the arrogance hasn't settled in yet.
I took a new job several months ago, I somehow lost the part of the paperwork with all that legalese on it. Darn, I don't have an IP transfer agreement.
They'll work with you to settle the disagreement in wording until both sides are happy. This happens more often than people think.
Do you really think this is the first time this has happened? Many companies in the high tech business have provisions in their contracts for dealing with "outside interests" and other intellectual property because it comes up all the time. You don't have to go in and do surgery on their contract language, you simply indicate on the contract (usually, there is a space provided for it) that you have outside interests and attach a letter explaining them and how you are planning to pursue them. You have that signed by the company during hiring.
This sort of thing isn't rocket science. Contracts are meant to communicate expectations among people in order to avoid misunderstandings. If your employer gives you a contract that is so tricky that you can't decipher it, you should perhaps consider not working for them at all.
But if it does make you happy, you can try to find a good lawyer; frankly, in my experience, that's harder than finding a good employer.
Just because your lawyer suggests a change to a contract doesn't mean you have to accept it. His/her job is to explain to you the often hidden implications of the contract and how you might get screwed (a list that seems to grow every year as more lawyers add to the culmative knowledge base of chicanery), and to suggest alternatives that benefit you. You are free to approve or deny the changes, provided you can live with the consequences. If your lawyer can't handle doing biz in this fashion, find another.
When I built my house through an architect, I had a lawyer look over the contract and suggest what was not in my interest. In subsequent discussions with the architect, we modified the contract until we were both happy with it (mainly clauses relating to arbitration).
The important point is that we at all times had a friendly discussion about what we both wanted out of the contract, and both acted at all times like differences were small bumps to work around, not deal-killers or screw-me-screw-you options.
As long as you're polite and friendly about it, you can say "I'm not comfortable signing this contract as is, specifically because of these parts." Go in with your reasons and your alternatives (that should be acceptable to them as well as to you). Show that you understand their concerns, and how they're trying to protect themselves (in the IP case, they don't want you to become a millionaire instead of them by working on their ideas in the evening). And be prepared to walk away with a smile and a "too bad, maybe another time" attitude. Most especially, push for clarification of terms and limits, rather than "how can I protect myself from getting screwed?" approach (even thought that's what you're doing).
IANAL, and it would be a good idea to run it by one regardless.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
I have 900 dollar rent. I get 998 dollars a month unemployment after the state takes out 1000 for child support. I'd take any job offer and sign any damn piece of paper they put in front of me. I have never argued about a contract, and never heard of anyone that has. The market is a nightmare. I'd be happy just to have a job offer over 65k. You have no leverage.
Take the job, buy expensive toys to forget you are a slave.
Tell them exactly what they can do with their NDA. In fact, tell me their address and the hiring manager so I can make an appointment to talk to them about this job offer too!!
Many posters have referred to this clause/agreement as an NDA. NDA stands for Non-Disclosure Agreement; ie: you can't tell anyone anything about your work. That is not what these employment agreements are, they are essentially MDAs (Must Disclose Agreements), they force you as an employee to tell the company everything you create while an employee and for a certain amount of time afterward.
To follow the letter of the agreement, you must inform the company every time you build something, draw something, think of something.
According to the agreement if you have the thought that it might be nice to build a BBQ pit, the company owns that idea and the BBW once it's built. If you explain it to your boss or the HR department this way they will should see the clause a rediculous and agree to a change.
I've never seen an agreement worded the way the author says this one is, all my agreements limited themselves to ideas, products or software of business interest to my employer, and they didn't automatically own it, they simply had first right of refusal.
As a suggestion to the author, see if they will change the wording to something like:
You agree that the compnay shall have first right of refusal to any works you create while employed with the company if such works could reasonably be deemed of interest to the company. Works may be ideas, documents, sofftware or phyisical constructions created in whole or in part by you.
This is (IMO) a reasonable clause for an employment agreement. It protects the company from you making lots of money from their resources, and protects you from having your life belong to the company. If an average person (read: potential jury member) can't see any connection between your work and the company hen you don't have to disclose.
Article X: The powers not delegated... by the Constitution...are reserved...to the people
I've been in the same situation before. The way to present it is simple. They want you for your technical expertise and experience. Part of building that expertise is your side work. All you want to do is to let you own what you've done and continue to do. You do have to be clear about not competing though. From an employer's point of view, it is dumb not to accept this. As long as the employee is up front on what they are doing, you've got people who go home at night and, on their own time, hone their technical skills. They are getting trained and you don't have to pay for classes. :)
Seriously, any employer who cares slightly about their people will not have a problem with a minor modification. Most of these contracts are boiler plate and as long as you are reasonable, you (probably) won't have a problem.
Agile Artisans
we have a formalized process during annual required training at my firm to submit these, and we get a review from legal within days. at that time, you have a choice. if you lose, you have to dump one of the businesses... the day job or the entepreneur job.
;)
I would very strongly suspect that in these parlous times, any "I can firewall my knowledge, really I can" arguments are not going to fly any higher and faster than pigs. not when folks are using shifted commas in their applications to patent features of HTML 1.0 as new and unique contributions to the art.
at some point, you are going to get an urgent customer call from your business on your cell in your cubefarm location. at that point, you are in a primal conflict of interest since you're on the other company's time. sorry, but that's how it is, and there is not going to be a lot of tolerance unless you are Steve Jobs
if this is supposed to be a new economy, how come they still want my old fashioned money?
Don't get me wrong, there is a line you cannot cross, regardless of where you work.
If I hire you and tell you to do something and do it "this" way you had best do it and do it the way I told you to. But if you think your way is better there is nothing wrong with pointing that out on the side. Everywhere I've worked, in all ranges of positions, this kind of input is appreciated.
To publicly challenge the plan is a mistake though. This is not seen as constructive. It is seen as disruptive. Bring up the ideas in private with those who made the decision in the first place. If you're right you may get praise. If you're wrong, they'll likely point out why. Either way, you're better for it.
If that gets your labeled as a boat-rocker then go find another job ASAP. Your talent is not being appreciated. Contrary to popular belief, there are jobs out there.
I heard the following story during my time in Microsoft's Windows NT group.
Dave Cutler (chief architect of Windows NT and well known has having a rather "abrasive" personality) had to attend an employee orientation meeting, just like every other grunt in the company. A big part of the meeting is the signing of Many Confusing Contracts, especially the one saying "everything you create during your employment belongs to Microsoft".
Dave refused to sign it. The HR dweeb running the meeting told Dave "You don't understand. If you don't sign this, I can't hire you."
Dave replied "No, you don't understand. You didn't hire me!"
In the end, Dave didn't sign the document.
AMENDMENT TO EMPLOYMENT CONTRACT
Exceptions to Paragraph 3, Subsection (x): Employer acknowledges and was advised prior to employment that Employee is employed as a freelance Web Developer both directly and through his business, Insert Name, Inc. Employer further acknowledges that in the course of that employment and consultation, employee will invent and devise solutions to problems the could be directly or indirectly beneficial to Employer, but Employer will have no right to such inventions or solutions developed for other clients belonging to Employee or Insert Name, Inc.
Secondly, Employer acknowledges that Employee, through his prior work experience, possesses unique solutions and programming developed on his own and with other employers, and it is this unique knowledge that ultimately lead to employment at Hiring Company, Inc. Given the number of programs and solutions developed in the past, it would be impossible and an undue burden on Employee to disclose every item listed in Section 5, Past Inventions And Discoveries. Employee can agree to not breach any previous non-disclosure contracts with previous employers so as not to endanger Hiring Company, Inc. This shall constitute an exception to Section 5 of the employment contract.
Employer agrees to strike the word "indirectly" from Section 6 "Non-Competition Agreement", and Section 7, "Non-Solicitation Agreement, and further acknowledges that Employee shall continue to own and operate his consulting agreements and business, Insert Name, Inc., and such business does not constitute competition or conflict of interest.
Look, just tell Mr. Gates what your problem with the contract is, I'm sure he'll be understanding. I mean, its not like he ever fired a guy for posting pictures of a bunch of Macs or anything. Oh wait...
Drinking habits can be dangerous. You can choke on the cloth and the nuns will wonder where their clothes are.
When I had this problem it came down to this - if the skills you are using do not fall within the remit of your job description, it is impossible for your employer to claim copyright on the things you make as long as you can show that company resources (including time) were not used in the production of the whatever it is.
Copyright and authorship in the UK have to be handed over in writing unless it is specifically detailed in your contract that you must hand over copyright/authorship. IANAL, so I asked a CS Masters student friend who is. Well actually he's a trained solicitor but he likes IP law like a rottweiler likes small animals!
In your case, your potential employers are already alerted to this contentious area of IP rights, and therefore wish to capitalize on it. Which sucks. BUT the way I got around authorship/copyright disputes was to come to an agreement after identifying these skills to the company that I release all code I write for the company (coding is not my job, I am an e-Commerce analyst) under the good 'ol GPL.
That way the company gets the source code which to some extent futureproofs me leaving and I get to be the principle maintainer.
The apps that I wrote were very specialised and probably not of wide interest (unless you deal with GXS HSE and TRADACOMS EDI files), so to be honest the apps are of little use to the wider community. However my boss has read the GPL and understands it's implications, so in theory as long as the company doesn't want to sell the apps on at a profit - in which case get a profitshare agreement, or arrange a stipend for work produced outside company time - then it's a win-win situation. This is of course assuming that the things you're making are software.
"It's not your information. It's information about you" - John Ford, Vice President, Equifax
When did companies start thinking that because you are on salery you are at work 24 hours a day, and any ideas you have are their IP?
TruePunk | Games
None of your projects has involved a spell-checker (see "wether" at least twice in the story - it should be "whether").
How does this relate? Well, it's just possible that what they're putting in the contract isn't legal. I mean, it doesn't sound like it should be legal. If you can get a lawyer to confirm, then you could feel safe signing it, knowing that the clauses you don't like don't hold any power anyway.
Oooh, this is an *excellent* point. My understanding is that, by accepting compensation (ie, paycheque, etc), you are probably implicitely accepting the employment agreement.
Not strictly true by any means. I'm salried but I can have activities outside my work if I want. There is reporting to do, but they don't claim to own anything I do. They just want documentation so if it becomes an issue they have documentation and can apply the boot.
It is worth noting I work for a large state-run university.
Slashdot Patriotism: We Support our Dupes!
What state are you in? If you're in California, state law trumps those sorts of contracts to some degree - see California Labor Code 2870.
Also, on every contract I've ever been presented with, the was a section for exempted works - depending on the type of company you run you may simply be able to exempt the entire subject area of that company and be fine.
A lawyer will know what's applicable to your state - consulting one wouldn't be a bad idea as many people recommend. However, it's not always necessary if you know what you want and can negotiate well. You can look up your state's labor and intellectual property statutes online. Negotiation is typically give and take though - you may have to trade some things to get what you want.
In my case, negotiations took almost a month but I won 75% telecommute, ownership of all of the code I wrote on the side that was unrelated to the company's business, and the highest salary on the team (considerably more than the initial offer). I was asked to run any industry-related works (e.g. music) I wrote outside of work by upper management for approval before release - which I did, and they were very reasonable about it.
Of course, when the company came on hard times financially and brought in new management to reduce costs and get the VC's off their backs, that meant I was on the short list for downsizing - despite averaging 60+ hour weeks for over 2 years of service, receiving heavy praise on every review, and receiving pretty awards for the quality of my work.
Ah well... It was nice while it lasted.
Anyone need an old coder?
I write code.
I know some employers want you to list all current projects you are working on in your spare time, so you can still work on them off-hours and they still be yours.
But frankly, if they want to own all stuff I do off hours, then they better pay me 3 times as much as I'd be working for them 24/7.
Based on the NDA-type documents I've signed, read or been exposed to over the years, I always love the "we own everything you think of, might think of or have thought of" clauses.
Hmmm. Are you SURE you want to own everything inside my head? Really? OK, you own it, it's your fault. I'm calling the FBI...
I also write books, and my employer has been happy to disclaim ownership in the material as long as it doesn't enter into their business space.
It varies by employer of course. My previous employer took 4 months to make these kinds of decisions; my current one turns them around in a day.
This is true, and several other points have been made in this line: * If you are uncomfortable with the NDA, reassess if you want to work there, because... * It is unlikely you can change the NDA, and... * They very well may decline to employ you simply for bringing the issue up.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
"I also must agree that these same creations or inventions become the sole property of the company."
I just invented a machine that kills innocent people, defauds the government and steals food from homeless people.
You *sure* you want me to sign this agreement?
The wording of the NDA is not enforcable, there is not proper "consideration" and because of this any judge would throw the contract out.
These contracts are mostly used for discouraging such outside activities as trying to start your own company etc.. etc..
I've done it on just about every position I've taken, or every position that had such strong wording.
The odds are they have no interested in stealing from you. However, you have every reason to protect yourself legally.
Just explain that you are completely willing to sign the document to ensure that their intellectual property is protected, yet you also need to ensure that your intellectual property is protected. I haven't met an employer or client that didn't understand this position.
You rewrite it in language very similary to what you described, adding very small clauses that clarifies that you are only giving up ownership for Works for the company, which only includes Works created during time in which the company paid, or works deliberately contributed by you.
Make it clear that you will obtain written authorization before introducing any other Works in their product, which includes works created on your own time. This is their primary concern. They want to be sure that anything you contribute to their product is owned by them, even if you develop it on your own time. This is understandable. They have the right to own 100% of what you produce for them. This, I suspect, is why they have this overly broad clause to aquire everything you create.
With very few additions, your contract will accomodate your needs.
Be clear about what you are changing. Honesty is important to gaining trust. In Microsoft Word, have tract changes turned on so they can see the exact changes.
I usually can resolve differences within a day or two. Then, I sign, and I'm on a new project.
It's more complicated if you plan to offer your works for a license. However, this isn't the time to negotiated it. If I ever have to license my works to them, I will ammend any previous agreement regarding intellectual property. Since I promised to obtain written authorization anyway, I can ensure that this written authorization clarifies that it ammends and overrides any previous aggreement regarding IP ownership, being replaced by the licencing terms.
If you get into licensing though, you might want to consult a lawyer. I only know that I can negate the clauses you described successfully so they are explicitly clear that it only applies to Works they pay for, or contributions I deliberately make to their product.
Don't tell them about anything you invent in your "technology related business". If you invent something really special, you can quit the job and then patent your invention.
I had a similar situation; the legal department had me write my comments on the form, initial and date my comments, and NOT sign the form. (Fortune 500 company.)
First the bad news: They'll just hire someone else if you don't sign it, so you're better off lying instead. If you do something truly great, hope it's great enough to get a hungry attorney involved to fight on your side when your corporate masters sue you. Also, Maybe you didn't notice, but the economy is crap. Don't rock the boat. Just sign the thing.
The good news is I just saved a bundle on my car insurance!
I wasn't out of work at the time, so this doesn't compare as much, but the changes you suggest are good.. I don't think any company has the right to say they own everything you think about. I got a decent offer from a place a few years back, but being a Sysadmin makes this kind of thing totaly not worth dealing with. I told the company to shove it, and went back to looking around.. I work for a university now, where I'm encouraged to expand my skills for my betterment, not just the job.
From the discussions with our attorneys when the start up I worked for was bought out: A company can only claim intellectual properties for stuff you do while: a.) doing your job, b.) working on their time, c.) with their equipment, or d.) following orders from a manager As I understand it, the reason they put those clauses into your contract saying they own everything, is they're afraid you'll stumble onto a million-dollar idea while at work and they won't be able to get a piece of the action. I would talk to a lawyer friend of mine and talk to my manager and HR rep about it. Also, if the subject of non-compete agreements come up, those are basically worthless, so I wouldn't worry too much about that (A lawyer friend I know told me that they're basically unenforcable, they just use them to scare the crap out of any company trying to hire you).
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Lost Sheep to Shepard, you got your ears on?
You have the right to work and to create. The company wants to own you and your mind.
As an indie consultant, I've never been able to make this kind of thing work.
I've always come into situations of conflict, and preserving my status as an indie consultant has kept me out of more trouble than I care to think about!
You will invariably mix them - ideas from work will percolate into your private business and vice versa, and then suddenly, you're found standing on very, very thin ice.
Save yourself much heartache and pain. Pick one: Consultant/businessman, or employee. Whichever you choose, do your best, and always perform to a high degree of integrity.
I have no problem with your religion until you decide it's reason to deprive others of the truth.
The issue is not whether these contracts are or are not enforceable. This issue is moot.
Simply by signing the contract you, if found to be infringing on the contract terms, will need an attorney to efend yourself. Even if the "judge" or arbitrator "throws out" the case, you will still be responsible for your legal fees. Costs can quickly escalate for fees and expenses. Remember, this is contract law.
Any employer who would require such a contract is simply infringing on employee rights. They are, however, counting on the difficult labor market -- who will refuse this contract when they must choose between eating and starving.
You wrote: .. Woot!!
> Woohoo, dude you *ROCK*
and your mimicking of the brainless, illiterate, and innumerate U.S. proletariat is going to get you a date.
You need to send some money to This Is A U.S. President?
You are both losers.
Stay tuned for my book.
Regards,
Kilgore T.
I told HR that I could not sign this before I spoke with my lawyer about it.
Initially I hoped they would forget about it, but they didn't. I did speak with my lawyer, and he said that it would not be a good idea to forget about it. The company could argue that I agreed with it by default.
The good thing about the stall though is that you have a little more negotiation room. You've proven yourself, and they probably don't want to get rid of you anymore.
My lawyer said that if he'd been on the Companies side, he would not buckle. But since he was on my side, he said that I should certainly negotiate on the sections that I did not like.
Preferably you get those sections out entirely, because once it comes down to wording it gets very tricky and you should really leave it up to a lawyer.
When talking to the lawyer, I came up with a solution pertaining inventions:
My company wanted me to list all prior inventions that I'd made. Although I didn't use these exact words, I said that was insane, and none of their business. So I asked my lawyer if I could file these inventions with him, so they'd be registered at a certain date. That way I can always prove that I invented it before starting at the company and they don't have to know what it is.
Obviously it would be better to have this list filed before you start working.
Regarding stuff you invent while working for the company, if it is related to their business, I think it's hard to argue that you should own it.
In all honesty, even though you do it on your own time, own equipment etc etc, your still going to use knowledge/ideas that you came up with during work hours.
More likely would be where you'd come up with an idea during the day time, but since it's all in your head, who's going to know, right? Then at night you develop it. You can see how this could be harmful for the company. Especially with programmers, they are going to expect a certain level of creativeness. That's why they have to protect against conflict of interest. I personally had no problem signing that part of the deal.
Sorry this has become a little bit of a rant...
...and keep looking for another job.
:)
I've found, from my last 3 contracts and last 2 salaried positions, that they will want to know your reasoning, but will be okay with it.
However, I did have one job where I was let go on my first day for refusing to sign a NDA/non-compete that stated that I was bound to it for 3 years after leaving the company. I'm not saddened by that particular job loss.
I too was laid off and started a consulting a business, then took a full time position and desired to still consult on the side. One of things you might've missed in your agreement paperwork is that most employers also have a clause the prohibits you from working for any other entity other than the direct employer. In my case, I chatted with them verbally and explained that I would continue to consult on my own time (after hours and on weekends) and that they could see access and firewall logs at anytime to validate that I wasn't using company supplied tools to perform my sidework. Also, I agreed that none of my sidework would be to any of their competitors or other companys in related fields. Once we agreed on that verbally, I asked them to redraft the employment contract to allow me to do side work *and* modify the agreement you mentioned that basically says anything developed locally (onsite) or remotely while doing work for them *and* connected via VPN was their IP, but nothing else.
At my current job (hence AC), I did not like the IP segment of the employment agreement. The document was a standard "all your brain are belong to us" thing, along with a "don't tell anybody anything" bit. I objected to the IP ownership part, and suggested alternate wording that made it only apply to things that I did "on the clock." They said they'd have the lawyers take a look at it, and get back to me. It's been months, and I haven't heard a peep out of them. So I currently have no IP agreement with my company. I guess our IP relationship is covered by the work for hire bits of copyright law and trade secrets law. Which, really, is quite reasonable. AFAICT, nobody is really unhappy with this arrangement.
in my free time i develop many gnu sw (mostly non coding stuff - like writing help and documentation but it is probably not important). does this mean my emloyer can say he owns this? i have never thought emloyer can have any claims on my free time :o) i consider it absurd. but may be it is because different laws in my cauntry... or i am simply naive
SHE does throw dice.
Sign the thing, and continue to do your side business. That is exactly what I've done. Do not mention, or bring your business stuff to work, and if anyone questions you, say it is a hobby. Chances are if you are taking on a 9-5, your business isn't exactly booming, so play it off like it is a silly side hobby you work on in your free time. Everyone I know who has started a business started it while working a regular job, and doing much of the initial work from that job, and then split. I've been running a small business and working for a large company for 4 years now and it has worked out (so far).
I have done this when I was hired here at my present position.
I simply said the following:
"Hmmm, I can't sign this because I am bringing code I developed over the years with me to this job, if I sign this contract, that means I won't be able to use any of it because if I did, it would then become 's property.
I would like to hit the ground running, and use all the resources that I have available to quickly develop products for you... but if I sign this, I will have my hands tied, and I would need to re-invent new ways for my basic modules, and code I have made very efficient over the years. This will slow development time considerably while I re-invent the wheel instead of using the code, and modules I developed over the years. Can you ask the big boss if he can waive this agreement?? I really would like to have my libraries of code with me to quickly provide solutions... "
After this little speech, your Boss will think about it seriously. My boss had no objections since he wanted speedy solutions at work.
Try it out, it worked for me.
I have a related question:
What if I've signed a restrictive document like this already (in a salaried position), and I'd like to try and renegotiate it so I can patent/develop some unrelated ideas on the side? Is this a pipe dream?
I won't repeat the previous advice, which is very good, but will add this suggestion. You always have the option to have them contract for your service with your own company. In some cases that will even save them money because they don't have to handle your taxes. It's not that expensive to run your own company or straight 1099. You need professional liability insurance, about 300-400 a year last time I priced it. An LLC is nice, but ask a lawyer because it's not always as much protection for a sole proprietor as it is for partnerships. And a DBA (Doing Business As) bank account. Then you can negotiate as a vendor and not as an employee. It gives them some advantages and you a lot of them. Depending on where you live and local ordinances. But most cities and counties have some kind of program for small businesses. And you'll need a tax guy for handling your quarterly tax payments, license fees and health insurance.
Figure your hourly rate on the salary they were offering plus 30%. You won't clear as much, but you'll be a lot happier.
What they won't like is if you're there for 10 hours you can bill them for 10 hours. They can't soak any extra work out of you. The flip side of that coin is they can work you for 90 hours a week and not pay any overtime.
A bad day working for yourself is better than the best day you'll have as an employee. And at-will employment is pretty much zero protection for you. Strangely your vendor contract will usually be written by you and will be a lot less complicated than the crap they want you to sign as an employee. Basically this is work for hire, what they pay for is what they own. And you can negotiate to use your own equipment and work off-site some days.
The downside to this is a lot of companies like having employees under their thumb and it will be entirely obvious that you are not. But they'll shrug if off with, "Oh, he's a contractor and doesn't have to do..." whatever.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
When I worked at a local high-tech company here in canada (many years ago), they made the fisrt computerized taximeters and the owner had world-wide patents, naturally, the hiring contract stated that anything you invented automaticaly became thier property (I needed the job, who wants to work at a Mcjob, so I signed), so yeah, it's natural for these bastards to want to glomm onto any free stuff they can. Thats how the nature of the IP system was invented from back in the days of Edison and IBM, I think that the current mess in IP land is just a natural evolution of this process.
"anything that I create wether or not during company time, and wether or not it relates"
..and I can go to the CEO (of a fairly large company) with an issue I want addressed. But that is after a long time of demonstrating that I'm competent. If I was a new employee, and the only reason he recognized me is because I was the guy who fiddled with his NDA, I wouldn't get a great reception for my change requests.
Contrary to popular belief, there are jobs out there.
Sometimes, in some places, for some people. I know plenty of quality people right now that are un- (or severly under-) employed. I know people that put up with fairly deep crap (eg. constant overtime, irrational demands) to continue getting a paycheck/year of experience.
Any job has a certain level of crap associated with it. There've been many times I've asked myself "Is this really the hill I want to die (get fired) on?" Looking back, I'm glad for all the times I've compromised. Issues are almost always less serious than they appear at the time, and are very seldom worth really sticking your neck out for - unless you're fairly sure you can get something better/as-good somewhere else.
Let's not stir that bag of worms...
"The initial OSDA Initiative resources are a group of documents providing suggested variations to employment contracts that would allow employees to develop Open Source software without encumbrance from their employer, where there is no conflict of interest."
http://www.sage-au.org.au/osda/
I had an oral agreement about ownership of an application I was working on prior to my current employment. Now I am going through the hassle of getting the same on paper.
Get it trademarked, copywrited and evaluated by a lawyer. Try www.martindale.com to find a good lawyer in your area.
I think hiring a lawyer or pursuing other tangential avenues would be a bit of a waste of time. My understanding is that they tend to imply that what you do on company time with company equipment is the property of the company -- ergo why people get fired for surfing the net for non-work-related items while at work. If you're doing your own stuff on your own machine in your space, it's none of nobody's business. However, talk with your HR people. If they're jerks about it, you might want to keep looking for a job and take this one to pay the bills in the interim :^>
Does that mean I get to outsource the lawyer's job to India at a tenth of the salary of a lawyer here? At $20/hour vs. $200/hour, that turns out to be pretty cheap.
Hot damn...where do I find one of these guys?
I've walked away from numerous contracts that stipulate, in various ways, ownership off all intellectual property during the term of the contract. Everyone wants the most favourable and airtight (sometimes meaning vague) terms--so do you. I am often successful when I point out that, as a advisor, I usually have my hand in several projects at once, I am being hired because I have specific domain knowledge that I am sharing, I make my living sharing my specific knowledge, and I am not a full-time employee (FTE). As an FTE, you will usually have less leeway. Be prepared and calm, make your case and move along quickly, don't drag it out. Most companies will not take a contract or NDA they didn't write, but it helps to have sample clauses and arguments that have been written or cleared with a lawyer ready that can speed along modifications. Things to watch for and attempt to modify would include: - All IP, products, inventions, etc., developed during the term of the contract - modify to be relevant in nature and/or during work times. - Will not engage in or assist in business activities that are the same as the company's for NNN months - if you can't chuck it, narrow the scope down in nature and time. Is IT, or your speciality, a business activity? Do you know all their current or planned business activities--they won't tell you.. - Cataloguing IP - Do not engage in cataloguing any intellectual property so there is a "check list" of who owns what. It will never be complete, it will be a one way process, and you have just given away a stack of IP. However, do keep a notebook of IP you think is important, it may come in handy years later. Also watch how you get paid and make sure termination clauses are equitable in both directions.
It seems insane that they would be inferring that they have a claim to your work on your private time. More and more so the further away from your job duties this outside work lies from the company's. You should read the contract more closely, or hire a lawyer for a brief consult'.
Also, it's illegal for a company to offer you a contract that has illegal demands within it. Such as payment of a first-born child [Rapunzel], etc..
If you have already begun working on something then your work before the company sets a certain precedence [it's yours]. All work thereafter is a derivative. This is how it should work, but we both know that if you create something profitable and they find out, they may try to take it from you.
What no one wants to admit is that ideas do crop up at work. Whether they pertain to your job duties or not, we simply come up with good ideas at random(sic). Who owns it? What about ideas that have something to do with what you do at work, but taken in a new direction? Or what about ideas that have nothing to do with work, but which you discovered because of work you do there?
The bottom line: Biggest lawyer wins.
Very Important: I am not a lawyer!
Stuff that matters.
If you are in CA, spend $100 for a short consultation an employment lawyer. Have the lawyer review the contract and advise you as to whether signing it can be a condition of your job. If the lawyer believes that it can't, have the lawyer write a letter to you employer stating the law and suggesting that they offer you compensation for signing this letter. Same goes with non-competes.
Companies need to understand that they cannot do this kind of thing. If they do understand that, then they need to understand that they cannot intimidate their workers with this kind of thing. If you are in CA, you don't want to work for a company that pulls this kind of thing. They are getting horrendous legal advice and that is not a good sign for long term viability of the company.
What kind of response is that?
When I went to work for my current employer, a New York based tech firm, they presented me with a similar agreement granting them ownership of anything I developed. I said I wasn't comfortable with that and wanted the california law to apply to me. They said fine - and had a revised agreement ready to go. I suspect that this is a common thing, as one of my co-workers said he did the same thing and got the same response.
For those who aren't familiar, California has a law that allows employees to retain rights to IP they develop on their own time without using company equipment.
I'd love to answer your question, but my current employment agreement forbids it.
I understand where you're at --
You need a job to pay rent/bills. The economy sucks. You found a job - yay!
Funny, but not everyone's been through such a basic human circumstance.
Here's some comfort. Not anything you sign in a contract is enforceable. A company can have you sign your rights away to leave work and vote on election day. Is that valid because you agreed by signing? No, you can't sign that right away, and they can't even technically ask you to.
So, if it came down to it, and you wound up in court with your company at some point down the road, don't think everything in the contract is the totality of the case. This works to the advantage and detriment of both sides.
It is very typical for a case in contract law to include challenges to the content of a signed contract.
In the extreme, a contract that is one-sided is not valid. (think intimidation) There are built-in safeguards in the law for these types of circumstances. What it really really comes down to is the quality of your lawyer at trial time and the willingness of the company to take you on after you resist their initial demands. They will have the monetary advantage in that sense, but there is also such a thing as bad publicity, so at least that makes them hesitate.
If the company modifies its contractual obligations and you don't, you have not paid what lawyers call "consideration" and the modification will not be enforceable (they can still sue you). The basic principle is that you cannot get something for nothing.
However, if in the modification you agree to non-trivially modify your obligations as well, it will be binding.
Short answer, get a (good) lawyer.
My company had an agreement to sign. I never did...couple years later, they had a new employee contract to sign, and said sign or leave. But, you could either sign and send back snail mail (I work offsite) or click on an 'I agree' button on their website. How binding is this I wonder?
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Yes, VERY GOOD point. MOD this up (I would but I already posted >:o).
# fuser -v
#
I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company. I also must agree that these same creations or inventions become the sole property of the company. I would like to change the wording to only include those creations, inventions and other Intellectual Property that is the direct result of work performed for the company, involved use of company property, and/or was created or invented during paid hours spent working for the company
I was in the same boat, asked to sign the same thing. I simply asked them to change it, and they said "no problem" and did so. I even had them amend the names of some existing projects of mine as specific exceptions to that clause.
While my experience of precisely ONE doesn't amount to much, statistically, I bet you'd have a similarly easy time of it at any small company unless it's being run by an absolutely insane dictator. Nine times out of ten it's just some boilerplate legalese thrown in by the company lawyer that the owner doesn't even care about- the guy who hired me didn't even know it was there.
Hint: think about human nature and laziness. Supply your own suggested, amended text, and they'll be much more likely to change it than they would be otherwise. Less work for them.
At a larger company, I bet you'd have a much tougher time getting that change done, just because there are more layers of red tape to go through, and maybe a fulltime legal department whose egos and anal-retentive preferences are at stake, as opposed to an independent lawyer whom they get in touch with three times a year when they need a little legal work done.
Good luck, and kudos for noticing that absolute B.S. in the contract.
OtakuBooty.com: Smart, funny, sexy nerds.
At my last employer I was asked to sign one. It was one from a stationary store (standard boilerplate) NDA and I refused to sign it.
I had two reasons. First, it included clauses that are illegal in my state. And second it demanded all of my IP even when not applicable to my job - and I had a project I was doing at home.
The HR department dodn't like me pointing these out. But about two weeks later HR had a NDA that I could sign.
This post illustrates several of the common misconceptions about copyright law. The phrase 'copyrigting programs' does not make sense. Copyright is not a process, it is a physical attribute. Every physical manifesation of an idea has a copyright, just like it has a color. You can't 'copyright' anything. You can assign the copyright to another party, you can register the object with the U.S. Copyright Office, or you can place the circle-c symbol on it. That's not the same as copyrighting.
In general, whoever creates the object (photograph, program, song, whatever), owns the copyright. There are specific exceptions, however. The one applicable to here is the exception called 'work for hire'. Anything that you produce as a result of employement belongs to the employer, unless there is an agreement to the contrary.
The definition of work for hire in the copyright law is:
(1) a work prepared by an employee within the scope of his or her employment; or
There are some additional defitions, but none that are relevant here. Clearly, if these programs you create fall within the scope of your employement, your employer owns them, not you. You can't copyright them because you don't own the copyright.
So why do folks register copyrights or put a copyright notice on a program? You can think of it like putting up a 'no trespassing' sign. Putting up the sign does not make it illegal to trespass, it just makes it harder for someone to claim they didn't know that it was illegal to trespass. Putting the mark on the program does not grant you any more legal rights, but it removes one of the common defenses of infringement,innocent infringement. If you put the copyright mark on the program, no one can claim they didn't know that it wasn't in the public domain.
This is exactly what I did with my current employer. They were a bit unsure when I disclosed my existing business, which I'd been running in my spare time for several years, but agreed to a rider on the employment contract acknowledging its existance & IP.
A year later and there have been no problems at all so far.
At least, the employee agreement sounds like one that SCO would make you sign -- they claim to own everything else, anyway....
-- -pjk
-- -pjk Perry Kundert perry@kundert.ca http://kundert.2y.net
if you want "No More Hiroshimas" then I say "You First. No More Pearl Harbors."
California has specific laws on the books which protect the intellectual property you may create on your own time, independently of any resources from your employer. I'm sorry I can't give you a link, but I know this to be true because employers in CA are required to give you a copy of the law on your first day of work. Nevertheless, many companies try to intimidate prospective employees. Any claim they might make would fall out in court. I don't know about other states.
There's no sense in being precise when you don't even know what you're talking about. -- John von Neumann
I carefully read and re-read the EC, and checked online for the meaning of some commonly used EC terms.
...agree to arbitration. Do not give up your right to pursue legal action. If you do, make sure that it is truly independant arbitration. ...agree with the policies in the company handbook. This is a gotcha because they can change the company handbook. One company didn't even have a handbook to give me to review before signing. Some companies won't let you keep the handbook. Edit this to: the handbook received as of (date) so long as it does not conflict with other statements in the employment agreement or conflict with applicable Federal, State, or local laws. Better yet; I have not received handbook so I do not agree to be bound to any of its content.
For one company, they were silly enough to give me a Word document that I edited myself, then printed it and signed it before turning it over to the very busy HR manager who signed it w/o even looking.
Another time, I simply crossed out offending passages and initialed them, then submitted the edited EC to my manager. He looked at it a little nervously, and said that HR would have to review the changes and see if they were acceptable. Nothing ever happened.
The companies assume you will not read these things; I assume they don't bother to look at what you have edited. So far, I win. And for you trolls that assume that questioning the EC means you won't get the job; that hasn't happened to me. I probably wouldn't want to work for a company that wasn't willing to work with me. Or I would have to accept the slavish nature of such an employer.
Some of the things I objected to:
1) Assignment of all patents and copyrights. I edit this to be created in the course of my employment, not to infringe on any prior work I have performed in the areas of (name the areas - in my case it was data compression and independently created software programs. I was performing integration engineering for the employer.)
2)
3)
4) Add a statement that if there is a conflict, the intent of the employee signing the document must be considered in any decision to enforce the relveant sections. Don't let them throw out your edits because they aren't in legalese. Better yet, don't give the employer a reason to pull up the EC.
5) Last and not least!! If you are pressured to sign, place the words "Under Duress" next to your signature and initial it. The courts will not hold you to a contract signed under duress, and most managers don't understnad the legal significance of such an innocent looking statement.
--
Your mother was a toaster; Mine was too.
I've asked past employers for this in the past.
They flatly refused to even consider modifying
their agreement. Unless you're someone who has
something they can't get elsewhere they will
probably consider getting someone else. Someone
who "isn't so much trouble".
-- Programming with boost is like building a house with lego. It's a cool but I wouldn't want to live in it
I suppose it depends on conditions in the job market.
Except this isn't just a niggle, its a major land grab attempt by the employer, and is illegal in many countries and states
Illegality be damned - it happens.
It really depends on the employer. At a larger firm, staying legal is usually a big deal and you could consult the company hr ethics patrol or whatever. At many smaller companies, it's just "how it is" and you can either "work 5 illegal minutes every day and remain employed" or "spend the next couple years trying to squeeze water from a rock while spending money you don't have on a lawyer who won't work on this crap."
Every job has plusses and minuses. In some job markets, you have to accept more minuses than plusses while you wait for something better. And sometimes you accept working 5 illegal minutes in order to keep a job that's really quite good. You don't strain at gnats if it means swallowing the camel (unemployment).
If this guy can do better, great. If he can't, he should be careful about managing how he appears to the company. Tread lightly, and keep an eye on the job ads.
Let's not stir that bag of worms...
Keep secret about the idea, find another job, wait 6 months to a year to make good on your idea and then go with it. Oh, and at the new job make damn sure you don't agree to the same draconian IP arangement.
On the other hand, if I'm writing security code for a company, it's going to be difficult to say "I'm also going to write security code when I get home that I own". The corporate reps will almost never accept that provision, and if push comes to shove, you'll have a hard time proving the seperation when it goes to court.
As pointed out, get a lawyer to go over your changes.
What is almost always a problem is going in and saying "I want this job, but I also have this other job that I want to continue". That's a big red flag for most employers, especially if it's in a related field.
ok, band camp story...I had a similar situation once...while reading through the agreement, it became obvious that the company wanted not only everything I ever thought up while in their employment (regardless or relevance or whether it was in work hours), but that they also expected 50-60hrs per week as 'the norm'...now, this was only implied as it's obviously not legal to come out with both of those statements. So, I asked them about it...straight out...I believe from memory it was even as blatent as "do you expect to own me for the period of time employed"...obviously I sugar coated with disclaimers either side of that question...but they appreciated my candor and basically answered 'yes'.
It was at this time I told them I had no problem signing the employment agreement right there and then....for triple what they were offering (which was already in the high end for our industry)...their jaws dropped and I walked...but hey, you only get one life, if someone wants to buy it away from you, make damn sure you get your moneys worth.
An at-will employment state and decent labor laws so that this isn't such an issue.
On the attitude of the employer.
Of the tone you use.
Do we modify or exempt, sure, all the time if we want the person. But if they show in their negotiations that they have a know it all attitude and want to run the company (as opposed to having a problem we can jointly solve so they can start contributing), then I might turn suddenly rigid and not want to make changes and maybe I'll get to learn something about the potential employee in the process. You are a new person still trying to make an impression, if you go in with the attitude that you have a apparent conflict that you want to resolve because you are excited about the oppertunity and just know you can work something out so there is no conflict, then you have a chance, IMHO. You don't want to lose by winning. You want to create a long term win-win.
As the parent notes, the situation is that when a change like this is proposed, there is always a backlash from the employer. But there are good reasons for this, since there are a number of issues that are raised. One, for example, is that if you were given the right to work with your own projects outside of work, then others may want the same privilege as well. Also, others may want to have other changes to the contract as well, and they will point to you as the precedent for this.
Given the right to work on your own outside projects? 'Scuse me, but they don't endow me with that right. I have it inherently. Their contract can try to take it away, but it is not something that we start without, and they graciously endow us with at their choosing.
Retranslation: you stick up against the removal of your rights, and they're afraid others may do so too.
You do not need much of their time, so it may cost you a couple hundred bucks. Think of what it could cost you if you don't do this.
Hey, last weeks I signed a contract for my son with very serious HiTech company. It has references to previous PARENT company but they was sold or in another way fully disconnected from that parent company ! It looks like standard contracts are not revised and have many irks inside.
I have pushed on this one probably more than anyone. I lost my internship from Sun (I wasn't fired, I was "un-hired" since I never satisfied the hiring agreement). And this was a time when I needed the money.
I spent weeks on it, including talking to people like Gosling and the then CEO of JavaSoft. My conclusion is that at a place like Sun, you aren't going to get them to budge at all.
Remember you "submit" an application; in other words, you perform an "act of submission" to the corporation. It struck me during this time while waiting in a lobby in one of Sun's sprawling non-descript buildings that it was like in ancient Greece when people made an offering to the local gods. My high school History teacher pointed out to us that a temple of Athena was a collection point for a non-trivial amount of resources which were then used in various ways by the preisthood; it functioned as a means to route resources around the community. Now we have corporations instead. What struck me that the have in common was that humans are too weak to take care of themselves, so we invent these gods/corporations to take care of us and then we give them the means to do that. It only works if you submit your will to the local god. You may not like it, but that's the way it works.
I did manage after several hours to get one word changed in the agreement when I joined a startup at the very beginning: they dropped that they owned any thoughts that I "conceive", leaving just those that I write down somewhere in some sort of medium. I'm sure that I was able to do this only because it was the very beginning of the startup and I was important to them.
They can't touch ideas that belong to another company. So you can moonlite.
1888 Franklin St.
Like others, I have modified most of the employment contracts I have signed. At one place, they thought their intellectual property was something special (it wasn't) so they had one of those really greedy, graspy, "everything you ever invented or will invent is ours" clauses. I replaced it with something more reasonable and handed it to the CFO. We went a couple of rounds this way, nothing rancorous, and then he dropped the ball. I guess it sat on his desk for a while and then he forgot about it; he certainly had other things to worry about. Net result is that I never signed.
Fast forward to the day I announced my resignation. Shortly afterward, I got an email from an admin, saying that they couldn't find my employee agreement and asking me to sign the enclosed copy. As you can imagine, I was sorely tempted to respond very rudely, but it wasn't her fault the CFO dropped it. I didn't feel like explaining what had happened, so I just ignored the email and the subject never came up again. It was very satisfying anyway.
Slashdot - News for Herds. Stuff that Splatters.
In 2001 I got one of these clauses changed to one that simply said: 1.) that what I do on my own time and with my own resources belongs to me as long as it does not compete with any product or service offered by the employer. 2.) I won't advertise my personal business services to company customers and won't use any company resources to promote my other business. They thought that was very reasonable and accepted it with no argument. It was just a standard contract (who comes up with this crap?) and nobody had thought about it before. Try that. Any company that cannot accept such reasonable terms as this should be avoided. If they reject it, you will have learned something about the company; they would be HELL to work for and you probably won't last long there. They will expect 100% loyalty and obedience from you, and (from what I have seen) will show you no such loyalty in return because they consider you no better than raw chuck.
I've modified these before. Yes, HR goes nuts because "no one's ever tried to change it before, everyone just signs them." Instead of giving away everything you do, just change it to say you'll agree to give them any ideas or inventions related to what it is you're hired to do. It's easy to defend that if HR and their lawyers ask you about it. And no, I don't think you need to hire a lawyer.
Let them rewrite the agreement the way that satisfies them. If they think it's OK to scratch it out and write in the margins, so be it. If they want a new draft, tell them to change it. I don't believe that any company really wants to fire you that early in the game. It's very expensive to find and hire people. They've already wasted thousands on you. They'll bend.
Curator of the Jefferson Computer Museum http://www.threedee.com/jcm
If you can get them to pay you hourly, instead of salary, there are several
benefits. Perhaps the most important is that overtime has to be paid, and
they have no claim on any time they don't pay you for. Salary muddies that.
The concern stated in the question is covered by this, too: if you're hourly,
they can only reasonably claim stuff you do while you're on the clock. Also,
hourly employees are better protected by the Department of Labor, at least in
the US. For example, any time over 40 hours in a week MUST be paid at 1.5
times your regular rate (at least), and they won't even attempt to violate
this because if the DOL gets called in on a complaint about overtime violations
it's painful for the employer. Also you can turn down excessive overtime,
even if your boss whines "I really need this this weekend", and if he fires
you for this it's legally actionable. (There are other ways your boss can
make your life unpleasant besides firing you, of course...)
Perhaps more importantly, most employers have different expectations of
hourly employees than salaried employees; if you decide you'd like to take
an extra week off beyond what paid time you have coming for example, many
employers are willing to let you have some unpaid time off with no argument,
unless your timing is really bad (e.g., if you want off all of December,
they'll obviously not care for that).
So, I personally would consider $15/hour to be better than $600/week.
There is a downside, though: if things are slow, they can cut your hours
way back if you're hourly and your only recourse is to get a second job.
Then again, even if you're on salary, you can still be downsized.
Cut that out, or I will ship you to Norilsk in a box.
You know, I've been on the Internet for 15 years, and it still cracks me up when a spelling nazi misspells a word while correcting someone else.
Some things just never get old.
The only caveat about steering clear of the anticipated direction of the company is that the company needs to provide documentary proof of their plans. In other words, if you come up with a great idea on your time, your employer can't steal it. It pays to be a creative geek in California.
Main Entry: wether
Pronunciation: 'we-[th]&r
Function: noun
Etymology: Middle English, ram, from Old English; akin to Old High German widar ram, Latin vitulus calf, vetus old, Greek etos year
: a male sheep castrated before sexual maturity; also : a castrated male goat
Your "case in point" has nothing to do with what you said in the first half of your post. You were fairly interesting up until that point, but then your anectodal "I was a stubborn ass because I hate God!" story just completely undermines you.
Everybody knows that "acts of god" means "events out of human control." Wasting people's time and money to have such a pointless term changed in an employment contract shows that you're likely to waste time and money on similar trivialities in the future - and are likely to be shown the door.
If you want to advertise your atheism, you have the Freedom of Speech at your disposal. Unfortunately, common sense and rationality seem to have left you. Negotiations of employment contract provisions are no place to preach your atheism.
-ZOD-
"Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
The idea of employment agreements also extends beyond salary/nda negotiations. I knew a guy who wrote his own contract for some side job for a husband and wife small business situation. He included that if he were fired, he needed two weeks notice or the payment for two weeks worth of work.
He made the deal with the husband, who was really impressed that he had everything together to create an actual contract. When the wife went crazy later on and fired him, she was very surprised to learn about the two weeks severance pay in the contract, and they paid up. I was quite impressed.
In my current job, I noticed similar provisions. I crossed them out, walked into my boss's office, and told him EXACTLY why I could not sign an agreement with these items in it. I also went over the other issues I had with the agreement. He went back to HR and HIS boss, and they figured out what they could remove or modify (which was pretty much everything). They gave me a new agreement, which I signed, and that was that. I currently own two companies, and am working full time (which is really stupid, but there you are). Anyway, outside of the lack of time, things are working well.
Certainly you DON'T want to sign an agreement that doesn't place limits on ownership, etc.; --it invites problems down the road. You do have room to negotiate because your company pre-exists and continues to exist and operate your employment, but, that does require due diligence on your part to make sure the employment contract is okay.
My own personal experience is that if the employer will not negotiate the contract, decline the employment offer; --it is one or more of he is only out to use and abuse you, he doesn't respect your rights, and/or it'll cost too much in legal fees to negotiate. (Obviously, we assume here that there aren't any real conflicts-of-interest with the potential employer and your own company.)
My second personal experience is that too many employers won't in Good Faith entertain such because they *believe* they own you regardless of what is on paper. Remember the reason you have a contract is to not only protect your rights, etc., but, to also keep all rational people out of court !! If your potential employer isn't rational with the employment contract, DON'T expect him/her to be rational down the road EVEN if you contract is properly worded, etc. That is, turn the job down.
My third experience is that even if your case has ample prior precendence that was okay and you fit under such (i.e., in a gov't, quasi-gov't, or big company and you've dealt with the HR dept's, lawyers, and IP folk and all say it is ok), you will find out that it doesn't work out unless their lawyers take the initiative to talk to your lawyer on the phone. It is MUCH faster and easier that way. Nearly all other ways are lost causes from personal experiences.
Employer's are still in some other century past insofar as employee rights, etc. are concerned. The ones that aren't are most likely "small guys/gals/operations" like yourself. It seems being reasonable exists mostly for small corps & the self-employed.
Anyway my agreement has two bearings on your situation. First is that all of my inventions that bear relevancy to my company's business is theirs. Anything created on company time is theirs. Anything created with company resources is theirs.
I don't work for a "consulting firm"; I work for an insurance company whose products and services are well defined. I don't mind the restrictions they placed on me.
I'm also not allowed to compete against my employer in the markets they inhabit for a period of up to 6 months past termination of my employment, whether voluntarily or involuntarily. This includes working for another company in my same field for the most part, although they have limitations set out such that I can see working successfully in technology. (Their non compete is basically a no contact with possible customers more than a "don't compete with us.")
I gave up an additional year on my non compete (18 months total) so that I could have an overarching exception created to the entire agreement for my Mom's company. She happens to do work in the exact same field as I do (it's why I'm a pretty decent programmer to have on board for this company; I grew up with the industry, helping her, etc.). So now the company actually gets two boosts. I'm lead developer so I can try out ideas I have with my Mom's company because she's smaller and more flexible, and when those ideas pan out I can bring them into our company with added knowledge.
My reality check bounced.
I am a chip designer, and pretty good at what I do. I am a diligent reader. But I am not a lawyer, and rely on lawyers to change my written intentions into legally supportable language. NOT legalese; it's just that some words used in ordinary language have special meaning under the law and should be used appropriately.
I have partly rewritten every significant contract I've ever signed. The main problem with a rewrite is time; you must get going on the task while taking the risk that the contract negotiation will drag on. You should sign a simple NDA so that you can get started - the stuff we work on rarely can wait the month or so it will take to review and rewrite (a good lawyer will be busy).
I have not encountered a consulting client that objected too strongly to judicious strikeouts. I am working with one client right now that is reviewing a contract that I added to pages to. This is harder for my clients to accept, but they understand what I am trying to do. My lawyer helped me tweak this massive (and unusual) addition into shape.
If I were mediocre, I would probably be less finicky. In the end, though, a contract is not between abstract entities, but you and a few other individual people, and that relationship is unique. Contracts should describe that unique relationship. If handled correctly, then sympathetic efforts put into crafting a unique contract will be a sign of your attentiveness, not of your waywardness, and in engineering and software especially this should be valued.
On one currently progressing contract negotiation, I am working with Portland Oregon attorney Robert Swider (robert@swider.com), who has worked on a number of software employment contracts and knows where the landmines are. For example, scan for the word "negligent", and be ready to add the word "intentional". Robert also pointed out some gifts in the contract, too. For example, a clause (from my client's lawyer) limiting MY financial responsibility for arbitration. A good lawyer finds both the bad stuff and the good stuff, and knowing about the good stuff will strengthen your sympathies for your client/employer.
This cost me a few hundred dollars. Not throwaway money, but cheaper than a future misunderstanding.
Keith Lofstrom server-sky.com
My great gradfather lost the patents on the staple gun and a back and forth style light switch, neither of which had anything to do with what his job wa at the time, but the CO. got teh patents, This is the way it has alwasy been and alwasy will be. Your best bet would be have a realitive hold ownership of any I.P. you create that way if they do embezzel from you at least the money stays in the family.
One thing you should not is that contractual agreements do not override the law. I'm not sure what the law is regarding these matters, but if the law says that it's not legal for companies to take rights of owner of projects created before being employed by that company then EVEN IF you signed a contract saying you did you could take it to court and that part of the contract would be nullified.
The same goes for any clause in a contract that is against the law. So even if you've signed something and your lawyer says it's illegal then you'd win if they ever did take you to court.
"Injustice anywhere is a threat to justice everywhere." - Martin Luther King, Jr.
> agreements such as this? How did you approach management with your modifications?"
About 10 years ago I was an independent software consultant who worked for a lot of big companies. I ran into this exact problem while chasing some business at Eli Lilly. When I tried to negotiate for ownership of the projects I would be working on after hours (and off the clock) their legal team quickly decided that I posed too much of a risk to Lily's intellectual property and the entire offer was rescinded.
In hindsight, I can see how it happened... as a drug company with lots of multi-billion dollar patents their IP is more valuable than anything else. So their legal department is maniacally focused on protecting the corporate jewels, even if it means going overboard on some poor little guy who was going come in an build a document workflow system.
(As an aside: Two weeks later I signed a six-month contract with Mobil Oil.)
I would handle this problem the exact same way if offered the chance to change anything. Signing an agreement you cannot agree to is worse than moving back in with your parents as a grown man.
That little cautionary tales aside, employment contracts are highly negotiable and should be reviewed heavily before executed. My favorite negotiating tactic is to read the offending term(s) out loud to my hiring manager and ask him if he would agree to this if he were in my shoes. That one has always worked. I last used this on a Silicon Valley lawyer who was my company's General Counsel. He told me I was the first new hire to actually read the damn agreement. This clearly earned me his respect.
Another nice maneuver is to ask the other person "is this fair?" or "Why would this be fair?"
Asking someone intelligent to justify or explain a stupid contractual term is usually a great way to get it removed from the contract.
Forget all of the "list your projects" advice and such, although this will work it will limit you to *just those projects*. Just don't sign something that says they own EVERYTHING, as you obviously have done.
:)
Make certain it only says they own things that you've done for them and you problem is solved. I've found that trying to change an agreement once one is in place is difficult, but not impossible.
While it's doubtful that such a broad agreement would hold up in court, the best policy is avoidance of companies which use the "we own your brain" clauses the one you're working for seems to like to use.
Good advice jars the ears.
Later, GJC
Gregory Casamento
## Chief Maintainer for GNUstep
That's what's wrong with the business world these days. Everyone is too afraid to stand up for what they believe in. People will talk about what they wish they could change all day and then not do a damn thing about it. The only way we are ever going to get treated fairly is if we stand up for ourselves and each other. The only reason companies get away with such clauses is because we let them.
"A truly wise man realizes he knows nothing."
Is that the kind of drive, ambition, and creativity the company is looking for?
Start a happiness pandemic
"So we went to Atari and said, 'Hey, we've got this amazing thing, even built with some of your parts, and what do you think about funding us? Or we' ll give it to you. We just want to do it. Pay our salary, we'll come work for you.' And they said, 'No.' So then we went to Hewlett-Packard, and they said, 'Hey, we don't need you. You haven't got through college yet.'"
--Apple Computer Inc. founder Steve Jobs on attempts to get Atari and H-P interested in his and Steve Wozniak's personal computer.
The company you want a job with is try to OWN you. Just have a third party own your stuff. Or better yet get a special purpose offshore entity to own it and use this entity to stack your balance sheet. Soon enough you can acquire your employer with your company and fire everyone that you don't like.
Yeah dog, it's an employers dream market out there now. Treat employees like shit and they'll do anything for a steady job.
I'm pretty tight w/my wife and I do not see divorce on the horizon. Whenever I have to sign these agreements, it is acknowledged that it is really my wife who is the programming genius who taught *me* everything I know.
HTH - Bubba6
"The best intelligence we had showed that Iraq was a problem, and you know what? Iraq was a problem."
The best intelligence we had said that reports that said Iraq was a problem were themselves unreliable at best. The administration chose to ignore the best intelligence and use unreliable (and often just plain wrong) intelligence to justify the deaths of hundreds of Americans and thousands of Iraqis.
Iraq is a problem now not because of any (non-existant) WMDs. It's a problem because by invading we de-stabilized the country and gave Al-Qaeda a bunch of new targets that they could strike without fearing repurcussions from the rest of the Arab world.
Is the world better off without Saddam running Iraq? Definitely. Was it an imminent threat to the US? Not even close.
I'm a liberal, and i don't decry the export of real American values. All persons are created equal. All persons have an inalienable right to life, liberty, and the pursuit of happiness.
I do object to fundamentalists who try to mandate their religious beliefs, or businesspuppets who exploit us and the foreign nations we are occupying in order to make a buck. I do object to exporting values via bombs, missiles, and bullets.
Does it make you proud to know your President lied to the American people in order to get them to support sending their sons and daughters off to die?
The only thing necessary for the triumph of evil is that good men do nothing.
Yeah, I had a similar experience, but my contract had a clause that said "All your base are belong to us." I couldn't make heads or tails of it, so I asked my lawyer. He looked at me and said, "Somebody set up us the bomb."
I gave up and signed it anyway. I really don't understand law.
Which part of "What success or failure have other Slashdot readers had" looks like "Should I get a lawyer"?
He wasn't asking for advice, he was asking what experience people had. No amount of hiring lawyers will answer that. Sensible questions will determine whether or not he should get a lawyer, DIH or forget the job.
In some states, such contractual clauses aren't just unenforceable, they're outright illegal.
Before I posted this response, I actually asked a coworker who has similar experience to my own (but a lot more job experience and life experience, overall). So this is what I have distilled out of that discussion, and my own experience.
Having said all that... usually, my deletions or changes to a contract have gone through unchallenged, even when I explicitly point them out. Even large corporate entities like Microsoft have been forced to cave in to such demands, such as when the original Windows NT team came on board after being hired away from DEC. In that case, the people in question were being asked to sign a rather restrictive non-compete clause, and they refused; Microsoft's legal department caved in after it was pointed out that these very same engineers would never have been able to leave DEC for Microsoft if they had signed a similar non-compete agreement with DEC. Of course, it helped that this was an entire team of engineers, not an individual hire, but the principles are the same. You probably won't have collective bargaining power on your side, but you also don't have to take just anything that's handed to you.
If you're making any contract changes beyond a simple strike-out of an objectionable clause, then it's a good idea to have a lawyer review your changes.
The best advice above has been that you should have an attorney look at the contract and that any employer that won't accept reasonable modifications to that contract is going to be a problem to work for anyway.
But as to the practical matter of actually finding that attorney who specializes in such things and will help you out for a reasonable price, here's what to do: Look up your local Bar Association. They likely have a lawyer referral service that gets you a 30-minute consultation with an attorney for $25. Additional time negotiable. The link goes to such a program in Alameda County California, but you can find your own local association at the American Bar Association's website.
Like Digital Freedoms? Then donate to EFF before they're gone.
As a contract custom software developer, I've been dealt with this issue repeatedly over the past 10 years.
The first time it came up, I was employed as an accounting systems developer for a medium sized electronics manufacturer. I was also having some success doing contract work on the side building unrelated software for a couple of small businesses. The work conditions at the employer became unsustainable for me. To make a long story short, the company was run by a dysfunctional extended family which expressed their issues through the inter-departmental processes that I had the task of automating.
At a point, I resigned and incorporated myself as a custom software development company. I knew they depended on me, and I offered them support and continued development as long as they would appoint someone as a single point of contact so that I didn't have to play family counselor to get people to agree on business process. One important function of my new company was to develop a codebase that had general use in the type of work I was doing (relational database front ends) to add significant value to my services by increasing the reliability and decreasing the cost of the custom product I provided. Needless to say, this involved retaining ownership to the code I wrote.
The next thing that happened was that their in-house councel asked me to sign a contract (their "standard" boilerplate) to the effect that everything I created or had an idea about creating during the time I was providing services to them would belong to them, and that I would grant them power of attorney to make sure that I complied. I didn't need to take that to a lawyer to tell me it was 'onerous' (Merriam-Webster: "having legal obligations that outweigh the advantages")- but I took it to a lawyer anyway.
I gained three important things from my work with my lawyer. Firstly, I gained an good understanding of the motivations and implications behind the 'onerous' contract, why things were phrased the way they were, and what was ommitted. Secondly, we worked out a standard agreement for my company, which focused on clarifying the obligations of both parties with respect to the process of allocating resources, delivering custom software, receiving payment, providing a limited warrantee, etc. Thirdly, I gained an understanding of the importance of each clause in my own boilerplate, the reason it was included, and the drawbacks of removing or modifying it.
All in all, the point was to enable me to have a standard agreement which IMHO offered a fair value
to both parties with regards to services and IP transfer of non-generic work, and dealt clearly and specifically with the kinds of eventualities that occur in the practice of custom software development. After all, this was -my- business, and it was my responsibility to define the value proposition and negotiate from that perspective.
Well, I responded to my previous employer with my own terms, but they insisted that I agree to their terms. The CEO, with whom I had a positive working relationship, seemed to be caught in the middle. He made a concerted emotional appeal to the effect of "what will happen to the company if you leave? You can't leave us like this, you need to agree to these terms", but ultimately, they didn't go for my agreement, and they refused to tell me why. Ultimately, I refused to agree to their terms. We were both very disappointed and negatively financially impacted.
The second time this happened, I was working for a small startup which was purchased by a huge public corporation. I had designed a product for the small startup, and was providing dedicated support to an initial customer. The huge corporation shut us down after the purchase, but, as I had expressed an interest in pursuing unrelated plans after the acquisition, and the product that I had designed was on the "kill due to redundancy" list, the CEO/purchaser put me in the "terminate" group as opposed to the "assimilate" group. I sign a no-compete in return for an option
Bring up your problems with the guy that hired you. Be polite, not demanding. He didn't write the contract, and he didn't stipulate the terms. Have a copy of them in writing (and digitally to give him an email later). He can send it to legal, and they can make the changes.
Beyond that however, do you want to be excused for a prior business relationship or ANY business relationship. As an employer, I'd have no problem granting an exception for their existing business, but ANYTHING off hours... maybe it's because we have a small business, but I wouldn't want anyone on my staff spending excessive amounts of time trying to develop a business on the side.
Knee-jerk Slashdotisms aside, I'm not personally interested in funding your startup. If I am, I expect a piece of the action, not simply your being distracted and tired from moonlighting at the job.
But that's just me, each company is different.
And before you bitch at me, no I don't think that I own my employees. However, I have my beliefs and expectations, and if someone doesn't want to exist within those beliefs and expectations, they can seek employment elsewhere.
Alex
There's only one thing to do when dealing with this kind of contract involving this much money: lawyer up. Don't be combative about it. If asked just politely explain that you don't have the necessary expertise to adequately support your interests. If a potential employer a) can't understand that, b) is offended by such an act, or c) tries to talk you out of lawyering up then that employer should no longer be considered a "potential employer" but should instead not be considered at all. Don't sign any contract that you don't feel comfortable with. If the employer won't be flexible and/or understanding of your position then you shouldn't even consider employment with that company. Walk.
Others have mentioned the California code that prohibits employers from extorting the product of your own personal time just to get a job. Delaware also has a similar law (bottom of page).
My experience is that the single best thing you can do is to actually get the contract source from HR. Insert the sections from the California/Delaware code and show it to the Man, along with the text of the law so they knows it's real, tried-n-true Legalese and safe (especially if you have to modify some wording to match the rest of the contract). And it'll be on non-marked-up paper, which employers also like.
Nobody is going to let you get away with just striking out the IP clause, like lots of posters have suggested, and most of the clauses are too complicated to tweak with a pen. Keep it the way it is, but add an "except as provided by section X" (which is the California/Deleware section). It may not be perfectly solid legally, but in the worst case it takes puts the burden of proof on them. They won't bother trying to steal your IP in court unless it's really valuable, and in that case you can hire a lawyer of your own and win.
Hiring a lawyer is likely just a waste of money. Very little in an employment contract (including the "all your thoughts are belong to us" clause) is legally binding, anyway.
Let's face it, if your other business has a breakthrough that makes you millions, your employer is going to sue you whether or not you have a variance and whether or not your variance has a lawyer's signature on it. And when that is the case, you'll have the millions to hire a crack legal staff.
:wq
When I came across that same experience, I edited the employment agreement by simply redlining the copy I signed and sent back. No major rewrites, but a few deletes such as,"...Everything I do, they own..." crap. I heard nothing. I still work there 3 years later and still run my part time side business. It's my belief that none reads those things and they just go into your file. When you have a falling out, the lawyers want to pull it out, but we all know that rarely happens. Whatever you do, don't sign something that's unfair to yourself. Don't make a big deal, simply adjust as you see fair and appropriate.
They came out with some umbrella holding company form regarding "employee responsibility". It was pretty noxious, especially from a political correctness perspective. I refused to sign mine and tossed it behind my furniture ("I lost it" plausable deniability), and nobody has said anything yet.
My guess is that in companies above a certain size, HR departments are all about doing more with less, and they're generally staffed by a bunch of clerical types for whom less work is the goal in life. One more or one less code of conduct or agreement doesn't matter and unless you sit at a desk in the presence of an HR overlord until all paper is signed, you can just not sign it or make up a story or two until they've moved on to the next distraction.
In terms of the story submitters problem, what happens if he just signs it and ignores the provisions. Either his side business is penny-ante and they won't notice or care, at which point he's not lost anything -- just be careful at work not to talk about it and make/take calls over lunch or on days off.
Or his business DOES become significant, in which case you quietly quit and leave an out of state PO box ("I always wanted to live in New Mexico") as your forwarding address. By the time they figure out what's happening, they'll have to either get ballsy and sue you for real (at which point careful corporate structuring can make their life very hard) or they'll just assume you're yet another ex-employee.
Either way, what they don't know can't harm you. Chances are an Ask Slashdot poster isn't a superstar who draws gossip, but some Ham-and-Egger that doesn't matter in the scheme of things.
I was at a company which, after a year or two of business, instituted such a contract and forced all employees to sign it. All of us pushed back in our own way, but in the end the choice was simple: sign it or leave. The reason? This contract came straight from the VCs and the board of directors, and they had been promised that all employees would be under this contract. Nobody in the company had the power to change it. Perhaps the CEO could have pled our case to the board -- if he'd felt like it, but what incentive did he have? Our managers were powerless. Perhaps if all of the key techs had staged a revolt together, we could have forced a change, but I suspect we'd be axed at the first opportunity if so.
The point being, some companies may be truly inflexible on their contract. The "w3 0wn j00" clause is a standard clause and some companies simply won't deal with you without it. But most probably have some leeway in the contract you sign; it seems to me that you could find out simply by asking. If they're unwilling to negotiate at all, they're either being unreasonable or they're bound as my company was. Find out.
Can't say I've ever tried such a contract negotiation -- I left that company and joined one without such a clause.
-- Moderation in all things, exceptions to all rules --
This is why our countries have goverments, and why I think that they are not doing their jobs properly. Why isn't there laws protecting citizens from this kind of abuse from the corporate world? Sure, you can always say "don't take the job then", but how easy is that if your alternative is unemployment? I don't have a big beard and followers willing to pay me as a religious leader after all (guess who).
There are countless examples of how corporations run our countries effectivly through this kind of behaviour, and we have the stomach to stand up and speak about democracy?
Bah, ranting is over for today, nothing to see here, MoveAlong() { MoveAlong(); }...
look here. Sorry in advance for the *.doc link.
Wh47 d1d j00 541, 31337 15n't t3h r0xor5 ne m0r3???
I think the changes you want, as you stated them, would never be agreed to by the employer: Why? Because you could still, on your own time and with your own equipment, developing simmilar competing intellectual property.
The point of a non-compete and intellectual property clause in a contract is precisely so employees cannot undermine their employers at their own business.
Where I feel it's reasonable to draw the line is when your non-work related activities do not conflict or share the same market as your employer OR if the IPs predate your employment. ie: Let's say you are a programmer and they are in the business of networking software for banks, and you on your own time code games for download. The two are pretty unrelated, even though your involvement in both is programming. In such a case, I'd say it's unfair of you to have to hand over such IP that's unrelated to their business. So, it's perfectly fair and viable to ask for the clause to be ammended such that it makes distinctions about which kind of IPs are applicable.
Some employers will give you some sort of verbal agreement that the clause is just a formality, in an effort to get you to sign it as is. But come on, let's see what happens on the oft chance you come up with something remarkable on your own time.
Another thing to consider is pre-existing IPs, especially if they are on-going and you intend to continue working on or marketing them during your employment. In such a case, you should explicitly list those IPs on the contract and have them excluded from the clause.
Now lastly, as far as how to get such ammendments in a contract will vary greatly between employers. The smaller the company, and the more valuable your skills are, the better position you'll be in. It would be pretty hard to convince a large company to change a contract that 60 other employees signed without question. Know what I mean?
the very first thing you must do is find out if there are any state laws governing such an agreement. For example, Non-compete agreements wern't valid in CA.
Get a lawyer. Sometimes you can find one through a state employment agency. If cost is an issue, call a lawyer and tell them your situation, they may either affer 30 minutes free, probably enough for your needs, ot point you to a group who can provide free/ cheap advice.
What I have done tell the employer the situation, and they have always modified it. I'm an inventor, so I won't sign anything that makes me give up any IP that is unrelated to the work at hand.
You could just keep your mouth shut. Do your work under a corporate name.
If you are doing side work, you really do need to get a lawyer and ask them how to protect your side work from employers.
The Kruger Dunning explains most post on
L I E
my other sig sucks less
Unless you're applying to work on a highly sensitive project like Longhorn at Microsoft, it's usually easy to get out of signing away your property rights. Just be cool, polite and act like it's a no-brainer-- what anyone who does creative stuff in their spare time would expect from an employer. If it actually turns into a sticking point, then the company is the kind that would bounce your paychecks, so move on and be thankful you discovered their true colors before it was too late.
In my last three jobs, intellectual property clauses were in a document separate from the main contract. My lawyer and I didn't have a problem with the main contracts, but I was advised to explain to HR in one sentence that on my own time, I am a prolific artist, writer and open source programmer, so I could not possibly sign any intellectual property waivers. After a quick phone call for approval, we went on to the next step as if nothing important had happened.
Without a contract stating otherwise, the law in my state is that everything I do on my own time with my own materials belongs to me. Other states may differ. Other employers may require you to modify a standard contract in order to get the same result.
Always get a lawyer to propose the wording of any changes, and don't volunteer that a lawyer did it. There's a common phrase for this: contract negotiations. If your salary is upwards of $30k, they shouldn't have a problem accepting slight deviations from a standard contract written for the worst-case scenario.
Whatever the lawyer is charging, within reason, is preferable to causing yourself more harm than good. Legalese is a very low-level language. A lawyer is your compiler. Without a law degree, a law library, and a decade of experience, any legalese you write would be like script kitties attempting to roll their own real-time OS in an hour or two. You might get something to run, but it probably won't be any good.
Normally, I would have let this go, but...
"acts of god" is just about the most suck-assed statement in a legal modern document I've ever heard of. If if it's there to mean "events our of human control" then why not replace it with such.
Furthermore why does one need to be atheist to want things clarified and pinned down better?
With a bit of creativeness just about any thing could be pinned on an "act of god".
The whole "god" thing in most original law/official documentation is vestigial anyway. From back in the day when if our crops didn't do well it was because you didn't pray enough or pissed god off in some way. Which, I might add, according the "big book of fiction" (aka. The Bible) was not very difficult to do...in fact one's mere existence pissed him off. (i.e. original sin nonsense.)
It should be replaced and redone. Other than the "official" by-laws of a cult, mysticism has no place in any kind of official document.
And remember, Oden hung from the world tree Ash for nine days and nights to bring the runes to you!
Or maybe, 70million years ago in the island chain of Hawaii the evil emperor Xenu...blah blah blah
The moment you work on code on company time, use company equipment, or use company code, you are working on code that is no longer your own.
Anything outside is fair game, including things simialr to what they produce - the world is full of examples of people leaving a company because they think they can do the same thing better. And that's perfectly fine, yes the company is training you but they are directly receiving the benefit of that training. That's why it's also considered rude to leave a company right after some major training.
The way a company can combat a person leaving to work on something similar is to listed to what the person has to say and really reward them for good ideas. The people who have bad ideas, who cares if they go off to compete with you?
"There is more worth loving than we have strength to love." - Brian Jay Stanley
I had this exact same problem. I got an offer and got a start date. Then they showed me an employment contract containing IP ownership rules pretty much like you described them. I told them very openly that I had a problem with some of the clauses and would like to make some modifications to the contract. They had no problem. Contrary to what you might see here, many people modify their contracts and it is not assumed that you sign what they give you. For the vast majority of employees that is the case, but they didn't have a problem making reasonable modifications.
My lawyer explicitely exempted a list of 12 areas of intellectual property where I had prior developments. Also exampted were 2 open source projects I was working on. Further modifications were made to the contract to ensure it was in my interest. In the end, my lawyer and their lawyer exchanged ammended contracts a few times and reached an agreements. Finally, we reached a mutually agreeable contract.
I had one of the best employer-employee relationships with this company. When I eventually left a few months ago it was on very good terms and they have even asked for my help occassionally on a 1099 basis.
While we were working on the agreement, I signed a copy of it with all the other parts that I could agree to and the parts I couldn't agree to crossed out and marked "under negotiation". That way they had NDA and liability stuff covered while we haggled over IP,
Overall cost me about $3k in lawyer fees. I would recommend using a lawyer comfortable with IP issues.
Good luck.
Your right! We should have nuked those fucking soviets. Stupid liberals.
If they want you to sign that, tell them to up your salary by another 30k/yr. If they want that level of paranoia, they should have to pay for it.
Of course, this will not be effective unless you are willing to walk away from the offer.
"Salaried employees are also normally expected to have no outside work to compete for their time and attention, and this will be in the contract as well.
"
Put THAT in writing in California. I *DARE* you.
Yes, it is the rule rather than the exception FOR SPECIFIC CASES. For example, if you worked for Microsoft and you wrote a video game during the weekend you could run into a snag if you tried to sell it on the side--even if you worked in the receiving dock of a warehouse and weren't paid to write a single byte of code.
Microsoft makes money producing and publishing software of all sorts (not just games) so regardless of what your position in Microsoft is or what time of day or week you did the coding, you could very well be "conducting Microsoft business" as defined by the employment contract. Most likely you would be compensated for that work if you disclose it up front (my employer pays good bonuses through an "innovation rewards" type of program). Of course, with Microsoft it might be a different story--just ask Wes Cherry how much he got for creating the Solitare game packed with all verstions of Windows from 3.0 upwards.
However, there are limits to what employers can legally claim from their employees. For example:
1. The employer CANNOT force employees to hand over inventions, copyrights, patents, etc. that the employee owned prior to being hired (IP ownership clauses CANNOT BE RETROACTIVE).
2. Employers CANNOT restrict an employees activity outside company time in matters unrelated to the employer's business--in most cases there is explicit legislation in place preventing that, and in others courts have generally ruled in the employees favour.
This means that if said MS employee on the loading dock still had some income rolling in from a shareware game he wrote in High School or released a code library that was incorporated into competitor's software before he was hired by Microsoft, his employer CANNOT assert ownership over that material. Generally this limitation is enforced in law to prevent current employers from compelling employees to violate NDA's made with previous employers (especially competitors).
Also, if this guy decided to sell real-estate, (or Amway or whatever) on the side, provided it isn't software related, MS has no claim to the income he derives from those activities, nor to the techniques he uses to be successful.
In your employer isn't as all-encompassing as Microsoft, you'd likely be able to make money selling your videogame, even if you're a programmer for them. For example, if you program for an industrial controls company. When in doubt, however, it IS best to cunsult with a lawyer.
when I read the part in the contract I was to sign about "anything you develop is ours" I told my prospective boss (at the multi billion dollar Silicon Valley computer vendor) that I thought it was unreasonable as they knew I was working on a hobby that was in conflict with the vendor (one reason they wanted to hire me, because of my knowledge). They said it was fine to come up with my own words (which I got a lawyer friend to do - converted two sentences into 11 pages to clarify that in my own time what I develop is mine). It took 3 months for the employers lawyers to ok it (it was a low priority for them) but I got the job and the company lawyers asked if they could use the new statement for future contracts. Sure they might have told me to piss off but they didn't.
pithy comment
I am to disclose to the company anything that I create wether or not during company time, and wether or not it relates to the company
So does the company get first dibs on your first born?
__ Someday, but not this morning, I'll finally learn to use the preview button.
FYI, atheists are not the only ones who object to the term "Act of God."
Some religious folks prefer not to attribute natural disasters to God, but to the devil instead, if it doesn't fit their beliefs in a loving, caring God.
I have worked for some of the largest corporations in the US, none of them in California. I have some religious objections to contracts which require me to assign the rights to the use of my image for company purposes. I have never had any problem getting such clauses deleted, in exchange for the assurance that if any company employee pointed a camera in my direction that it was my responsiblity to make them aware of this deviation in the employee agreement. I was usually just one of many software developers for these corporations. So, I don't think big necessarily means inflexible.
1. Restraint of Trade clauses
This is where they say if you quit this job, you can't go work in the same field or for a competitor for a certain amount of time. In Australia (where I am) these clauses are unenforcable and illegal, but it may be different in the US and elsewhere. Some of the contracts I've been presented with were truly outrageous on this one - eg. You can't work in your field world-wide for a year. What a joke!
2. Anti-siphoning clauses
Mostly these are reasonable. eg. You can't pinch half the company's staff and go and start another company. Occassionally I see some shockers though. eg. I teach part-time for a training company and they wanted a 50% share of any consulting revenues I obtained from student leads, or any work I obtained from the company they worked for. Quite a stretch given that they're not in the consulting business.
And last of all, if you ask for $1 every time you hear the words, "It's just a standard contract" you'll retire a very rich man!
One of these days I'm moving to Theory - everything works there
As Nike says: just do it.
Cross out the sentences you don't like. Add a couple in the margin if you think its appropriate. Then, show the person hiring what you did. Tell them, "Hey, I crossed out a couple of things to prevent some conflicts. Would you point them out to the boss in case any of them need further correction?"
Nine times out of ten, the person handling your paperwork will glance at it and file it away. That'll be the end of it. For the tenth time, just maintain a positive attitude: "Yeah, hey, I had a couple issues with that. I'm really eager to get started here. Lets schedule a appointment with the lawyer and get it taken care of."
Can't do it for a government job, but almost anywhere else...
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
in the last six months ive been asked to sign two documents with similar clauses. in both cases all i did was explain my situation and the other party agreed to have it removed without a whimper.
i say something like this: "I develop open source sofware and cannot in good faith sign a document with such a clause. i have to explictly renounce certain rights to have my software deemed free, otherwise no one will use it. I need to be able to own the rights to anything i develop in my own time and with my own resources."
and ive never had a problem. what i think happens is companies hire some 3rd party consultant (kpmg, e&y etc) to write their employment contract and management dont realise how such clauses affect open source people.
i am currently employed, and so its easy for me to say this, but if a company wasnt willing to remove or change that clause, i would think very carefully about working for them.
Well, I have been there. The first big company I worked for had a policy to allow you to have your manager determine if a particular project was yours or theirs. The project I was working on was in a different language than they had ever had me working on and completely different subject matter.
I know had a signed document that said I owned it from Company A. When the next company wanted the code, I showed them that and they sent it to their lawyer, where I basically allowed them to write a 99 year license.
Been thru that several times now.
Companies in the list:
General Electric (Had the policy about manager review). Insurance companies - wanting 99 year license. AT&T - really nasty about it. Consulting terms - go both ways.
Signing that sort of agreement was dumb in the first place.
Yes they have rights to what you do AT work.. but what you do on your own time should be yours.
Personally id never get myself in such a situation.. to get out of it you might just have to find a new employer, since you agreed to give up your rights in the first place.
---- Booth was a patriot ----
You are entirely correct, but are missing one really important fact.
There are currently many more people who want jobs then there are jobs to be had. Especially the non-crappy high-paying kinds of jobs.
This means that we are in an "employer's market" because the employer has the bargaining power.
See, there are enough potential employees who are qualified (in most arenas) that all those who refuse to accept whatever they are given can just be ignored. All the available positions will still be filled.
So, yes, right now, in this job market, it is the employer who has the biggest say. Just like, about 5 years ago, it was the employee who could (and did) demand and get whatever they wanted.
Thats not to say that you have to agree to terms you do not like, just that, with a company of any size, you will simply be skipped, and the job will go to someone who doesn't care or doesn't read as carefully.
Being all confrontational isn't a good way to get a job.
Years ago I was handed an 11 page (yes, eleven) page contract. I went through it striking out a half dozen clauses that I told them I would not sign and another half dozen that wouldn't sign without modifications.
The killer was a clause that required me to write a letter in my own handwriting. The letter needed to give them authorization for seven years from leaving the company to enter my home, apt, or anywhere I spend any amount of time (ie - a girlfriend's house), without notice, to search for any of their property or IP.
Needless to say, I didn't sign.
Salaried employees are also normally expected to have no outside work to compete for their time and attention, and this will be in the contract as well.
Put THAT in writing in California. I *DARE* you.
The last several companies I've worked for (all in California) put that in their contracts. It's boilerplate.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
When I worked at Dell, I just crossed out the parts I didn't agree with and initialed it. I recieved a copy backfrom legal OKing the terms I changed / added. My lawyer has told me this is perfectly legal. If they give it to you, and blindly don't re-read it to see you haven't made changes, that's their fault.
I'm an engineer, and have been CEO of some venture-backed startups. I think your message doesn't point out an inconsistency at all.
The refusal to modify a standard employment contract is just an indication that the employee in your example has very little value above another employee who doesn't want to modify the standard contract. If the employee in question were a star CTO or a hotshot VP Sales, lawyers and negotiation would be expected as a matter of course. A cubicle drone -- well, there are a lot of those out there.
Contracts with companies are handled in exactly the same way. If I want to put together a distribution agreement with a valuable systems integrator, you bet my lawyers and my accountants will be involved. But if the company that sells us office supplies wants to change our standard terms, we're done -- we just hang up the phone.
We can't afford to expose the company or put together some hodgepodge of contracts for just anyone. It's not just that our attorneys cost $400/hour -- it's also that we can't afford to get into situations where we limit our future freedom of action or end up with a web of different agreements that no one remembers until they come back and bite us on the ass two years down the road.
Finally, many Stockholder's Agreements for preferred stock (i.e., one of the agreements that says what the VC's rights with respect to the company are) these days include provisions that any deviation from a standard NDA and non-compete will have to be agreed to by the Board of Directors. They will be willing to examine things like this for hotshot senior personnel or must-have people, but most CEOs I know are not very interested in telling the board that some cubicle drone wants to modify the standard agreement.
You may not like it, but there is a logic to these things, and it is simple and consistent. In this case it leads to the conclusion that you have very little power. If you want more power, you will have to differentiate yourself in a way that will cause the company to perceive greater advantage in employing you.
funny as hell!!!!
Go one step further! Stall before you sign. Maybe they'll forget about it... (Happens all the time at larger companies.)
The rule of engagement here are fairly straightforward. It all boils down to STALL. Stall, stall, stall, stall, and stall some more.
1) They give you the contract. Don't go out of your way to get it, or to speed this step up.
2) Explain that it is your policy to have all contracts reviewed by your attorney before signing them. Be nice. Be polite. Tell the odd story about so-and-so who got screwed by a clause they missed on page 16.
3) At this point, they're waiting for you to come back to them. You can pretty much stall things indefinitely. If it's a large company, they'll probably forget about it over the weekend.
If they don't, you can always change the contract with the big red pen, and send it back around again.
If they accept, or don't pay attention to it, your golden.
If they decline your modifications, well then you need to meet with your lawyer again. Too bad he's out of town on vacation this week...
It's not terribly difficult to remain employed for several years this way. More than enough time to find another job...
.
And for those who think I'm scum here: Let me just say it's a dog-eat-dog world out there. We're the peasants wearing milk-bone underwear.
We're dealing with HR droids. One of the lowest lifeforms on the face of the planet. They don't know why their doing what they're doing. There just doing it. And they'll happily sell you down the river rather than risk their own livelihood.
-Hmm. Better post anonymously, on the off-chance Linda reads Slashdot.
I line out any objectionable material, initial the margin next to the deletion, add in anything required for clarification, initial that, then sign the document and turn it in.
Only one time, in the ten or twelve times I've done this in my 20 years in the computer industry, has anyone even noticed.
The last time I did it, it was because my company sent everyone to a meeting where they explained their new random drug testing policy, then required us to sign a paper "to verify that we had recieved the information". On reading this form, I found that the last line was something roughly like "I voluntarily agree to be in the random drug testing program because I think it is right for the company and for our country". I detest jingoism even more than the stupid drug war, so I lined it out and wrote in "I am only signing this form because I believe I will be fired if I do not. I believe drug testing without cause is an unconscionable waste of income and a social evil" and signed it.
Nobody even noticed when I dropped it on the stack with the rest.
The only time I got caught was during a hiring interview, when I lined out some verbiage that I thought was offensive... it essentially said that I agreed to conform to my employers' moral values even on my own time. Didn't get the job, and glad of it. Don't ever sign away your values or your rights, you'd be better off becoming a panhandler or a thief.
One of the relatively recent cases on this kind of issue involves an old friend of mine, Evan Brown.
Evan was already working on an idea on his own time when he went to work for DSC. When he had the idea ready to proceed further, DSC claimed it belonged to them, not to Evan.
That was in 1997. The case is still dragging on.
There's even been a Dilbert comic strip that referred to the case.
You can read more about it at Who Owns Evan Brown's Brain?
There is an article (pdf format) in a law journal about the case you can download from Evan's web site at: Lai, Jim C, Alcatel USA, Inc. v. Brown: Does Your Boss Own Your Brain?, The John Marshal Journal of Computer & Information Law, Vol XXI No 3, pp 295-324.
I've read several posts for and against getting a lawyer to change the NDA. My question to you is why would you want to risk having an employer decide to not hire you because questioning the almighty contract might be a sign of a troublemaker. Don't let the other /.'ers fool you. The corps are in control and they can easily find another codemonkey to hire. Be thankful you've got a job in this day & economy.
See I've been programmed. You should be too.
Now go work your nine to five like the rest of us
and quit your whining! Ahhh time to go make the donuts......
The 3 words are of course, get a lawyer.
If you cannot afford the lawyer, then reject the job unless they change it to be equitable, not you.
Its really that simple IMO, based on about 70 years of living. You absolutely must be able to look yourself in the mirror and see somebody you'd like to shave rather than cutting the throat you see in the mirror.
--
Cheers, Gene
"There are four boxes to be used in defense of liberty:
soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
. . . I have been known, from time to time, to write songs. And also the odd piece of fiction. And have been faced with one of these uber NDA's-we-own-all-the-output-of-your-mind contracts. When I mentioned that I did songwriting and fiction, and could they specifically exempt them from the Employment Agreement, HR generally calls Counsel, and in a day or two, a slightly modified Employment Agreement is ready. Often, the gentle approach works. . .
Parent has lots of useful anecdotes about IP and contracts.
my "case in point" has everything to do with contract law -- if you don't like something, and you care enough to read the fine print, you should get something changed.
your assumption that I "hate god" is really off base -- having not met or experienced the diety first hand, i have really no opinion whatsoever as to my reaction to said entity.
and if its so "pointless", why have it included in the contract in the first place? stop contributing to dead-tree-society needs by removing it
my "Freedom of Speech" is excercised when I choose to commit my name and thus legaly bind myself to a contract
again sparky, this is ABOUT MONEY -- and most business are "for profit" -- and those businesses will continue to do things that help them hunt and gather more of the "profit"
if you're willing to accept without challenge any contract that is put in front of you to sign, then you get what you deserve
Old age and treachery almost always overcome youth and skill.
The question you need to ask is: If you never apply/use this clause, then why does it need to be in the contract ? Remember, you are the only one who is going to be concerned with defending your interests. Don't give that power away and assume someone else will do it for you. Your employer may be nice and not out to get you, but they likely won't be actively motivated to protect you. That's your job.
I hope you're not pretending to be evil while secretly being good. That would be dishonest.
I've had many employers ask me to sign these types of agreements. I've very nicely asked the HR assistant: "What happens if I don't sign this?" They say they don't know, that they will have to ask the legal dep't. "Oh, OK then when they get me an answer then I will consider signing it. THanks :-)"
Usually nothing happens until a year or so goes by and then some other HR team member calls me to discuss the "missing item" in my "file". Again I ask the simple question, again a year goes by....
-Ben.
I have always modified such agreements. Nobody was shocked - they just passed it up the ladder, and it always came back approved.
Be sure to let them know - don't just hand it back with strikeouts and initials.
I hire programmers now, and I of course have similar stuff in my contracts - not quite the stars and the moon, but I have to cover myself too.
In my current contracts, the programmer:
A. Agrees to disclose any and all outside work.
B. Agrees NOT to accept work that I find to be a conflict.
C. Agrees to pass me full ownership rights to code he writes for me.
D. My claim only extends to code he writes for me.
Oh, and programmers have modified my contract - we were always able to come to an agreement, and I was not upset that someone was using his brain and questioning what he was told. Actually, I am always surprised when people just look it over and sign without comment, question, or change.
After all, I was looking for people with brains and the courage to use them.
After I quit, the company tried this with another employee. She also refused. I don't think either of us would ever intentionally disclose information that would put the company in jeapardy, but it would be legally hazardous to obligate yourself to events in the past. I mean, the other employee was completing her P.Eng, so she might have written something in her journal that violated the later NDA!
Never sign a backward-looking NDA.
-- SYS 64738 --
Most companies will not alter their agreement, and you're immediately suspect if you request modifications. I recently saw one Fortune 500 withdraw an offer (decommitted) because the candidate pushed so hard for an amendement. Good luck.
What you're initially accepting is a job offer, not a job. Therefore, accepting the job is only half the process. Terms of employement must be agreed upon, AKA "a contract," before you are part of an organization (think taxes). If they give you the contract and you start showing up for work, they can assume, in good faith, that you agreed to the terms. If they didn't give you a written contract, then its pretty much your word against theirs as to the nature of your agreement. If thats the situation, the Judge will consider the industry/company's normal terms of employement and is more tha likely going to hold you to that. TANSTAAFL
[Fuck Beta]
o0t!
My first job out of collage :), I was met with a similar "we-own-all" contract. Of course, it wasn't presented until I had been on the job for a few weeks. The contract was dropped off with my employee handbook, hall pass, forehead barcode, etc...
I stalled on signing it. Was bothered by the IT secretary for a while. "Lost" it for a while. Then "misplaced" it for a while. Was given another copy. Stalled. Eventually, the IT secretary forgot about it and was luckily moved on to a different AVP team. Our paths diverged further as our relationship became lost forever in a series of intellectual power re-appropriation plans.
Obviously, this won't work in all environments. But it is amazing how much you can get away with in a big corporate drone environment. My gosh, look at the id10ts surrounding you that they *won't* fire!
This one gang kept wanting me to join cause I'm pretty good with a bo staff.
IANAL and I am wondering whether these kinds of agreements have to expire after a certain time by law. Or whether such clauses have to be excercised by the company by a certain time after the invention is created or after employment ends.
I agree. I have done similar things a number of times. No way I'm going to give them the stuff I've been working on since 1994. There was even a time when I have refused to sign things that were presented to me after hiring.
When I started there was no dress code. A couple of months later the "geniuses" in CA decided we should all wear shirt and tie and that we would agree to any changes they decided to make and they didn't need to tell us. I protested the clauses and didn't sign the thing. Nothing ever came of it, in part because my boss felt the same way I did. Turns out the "policy" was something they came up with for "Due Diligence" when they were fantasizing about an IPO (Back in 2000).
Paul
...I've been handed employee agreements with that "we 0wn all" clause. The first time I pulled the old "Sorry, what paper? I must have lost it" for the entire 9 months I was there. The second time I just crossed out that part and told them if they initialled that change, I'd sign it. They said they'd reprint it for me and never did. Problem solved :) YMMV
Dammit, I meant to post that anonymously!
with a company of any size, you will simply be skipped, and the job will go to someone who doesn't care or doesn't read as carefully.
I guess you haven't been participating in hiring people for such nice jobs, then. Fact is that I could care less about next 20 applicants that are willing to sign anything my company demands, if they are not good enough. The guy who is good enough is still worth the hassle of negotiating contract over again. Last time we hired someone we got 13 candidates (had to do it via contracting agencies, which sucks... not contractors but agencies), and chose the best one. I wouldn't have bothered to hire most of other 12 in the first place, and definitely wouldn't have chosen any of few remaining ok candidates over some petty contract dispute. So, we worked things through (nothing fancy; in this case no rewording of contracts... although he should have been more careful with his deal with contracting bloodsuckers), and were happy to get the best candidate. Later on when he moved on (due to problems with his contracting scumbags), contracting co. tried to bring in a warm body to replace him; my company just cancelled the contract (and req went to another dept for budget reasons). So much for theory of "just bring in next humble servant".
Really, although job market is not as good for applicants in general as it used to be, there is HUGE difference between "just ok" and "very good" applicants. This is especially since difference in overall productivity is up to factor of 10, between rock stars and barely ok code peons. And in latter category, overhead of helping and instructing them means their input on overall productivity of team may become negative.
So, there are jobs and then there are jobs; ones where employer just needs warm bodies are ones being shipped overseas, and there there's probably not much room for any negotiation. But in many other jobs you can indeed negotiate terms; not dictate your own terms, but negotiate and find working compromise. Just ASSUMING there's nothing you can do guarantees you'll be eating dog food with terms.
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
Be realistic about what you're worth, though. How likely are you to be making real money off your side programming? How big is the company? In my experience, smaller companies (where the person hiring you is also the one entitled to make the decisions about whether changes in the contract are acceptable or not) are much more forgiving and willing to compromise than are big companies, who have used the same document for the last 2,000 employees and aren't about to change it for the 2,001st. If you're really not likely to be making much money with your side work anyway, weigh your potential income (and potential loss) against the cost of hiring a lawyer. If you're up against a big company, I'd say forget it. They often don't have time to track down individual employees' successes anyway, and they won't be willing to call in their (undoubtedly very expensive) lawyers because you're squeamish about their contract.
I had an attorney go over a similar agreement with me a while back.
Basically, the clause that states that whetever inventions take place during my employment (on company time or not) is their is not legally correct.
According to him, if I create something in my garage and it isn't directly or indirectly related to how the company describes itself in the agreement ("software provider") being too general, more specifically, anything I had knowledge of in the company that pertained to the company, then they can't claim it.
So, since I create CRM software for insurance industry, if I create the world best compression algorithm and they want to claim it, they can't.
They would likely claim it is theirs because I was employed while creating this "invention". But unless they want to compensate me for the time, materials, resources, equipment, and endeavors performed *in my own time* then they can't claim it as theirs.
The company may argue that they were paying me (in salary) but they can't force me not to practice and further my own trade, even considering 90% of what I do at work doesn't help me much at home (the other 10% is basically just looking up references and such, but nothing truly creative).
They also wanted me to turn over all patents and copyrights to my name for the price of $200 each, and whatever I did disclaim, if I even touched it while employed, it became theirs (even if it didn't involve company resources whatsoever).
My attorney said they can't do that. They can obviously not hire me if I don't like those terms, but they would likely not win in court (if I had the money to defend myself to the end) if they tried.
Then there was the trade secrets section. It said that I would be exposed to certain trade secrets. My attorney said that that isn't good enough. I would have to be notified in writing each specific trade secret or I have no idea it was a trade secret.
The bottomline is that these employment agreements are rediculous and I signed it (they wouldn't change it) but after 12 months of unemployment I had no choice, and after consulting with my attorney (california about 1.5 years ago) I felt comfortable knowing what my rights *really* were. Just because I signed it, doesn't mean it'll hold up in court. I can't sign away my legal rights.
Thanks,
Me
The only time I ever had to sign a very restrictive employment contract (when working in a research lab environment) I saw an opportunity and took a chance: The "OFFICIAL" document was on the mainframe, and printed using a laser printer.
...
...
I grabbed a copy of the file, made the changes I had to have, kept the "look and feel" of the contract document itself almost identical to the original, printed it on a laser printer and had them sign as well as me. They didn't notice the changes, and signed without hesitating or reading.
I still have my copy
I lucked out in a number of ways there, so it is a risk
Best advice: Have a lawyer go over it with an eye to YOUR needs and state law. If he suggests changes, ask for them. Some they might go for, some not. Decide if the compromise is worth it.
(As a backup, it is good to practice the phrases "Would you like fries with that?" and "Paper or Plastic?" until you can say them repeatedly with a smile and without error.)
Tom (Retired EE)
And this explains why employees routinely despise the companies they work for.
... but not because of lack of eagerness. Wallys are innumerable. And the replacement might be another Wally, so there's no guaranteed payoff.)
Well, it's a part of the explanation. When the company has the upper hand, it's merciless. But after you've been hired, it's much more expensive to replace you. So people who feel that they've been mistreated, are less than anxious to jump when someone shouts frog. Most people don't really want to file an wrongful dismissal suit, but some do. So replacing people is expensive. (Yeah, it can be done. I've seen jobs defined out of existence because some honcho was mad at someone
There's a reason for the Dilbert mentality, and Catbert plays as large a part as the PHB.
You may not like it, but there is a logic to these things, and it is simple and consistent. In this case it leads to the conclusion that you have very little power. Since they won't value you for doing your job well, you might as well not...unless you want to. They already value you the same as if you were doing your job poorly, so why bother.
But this isn't the only way! Some places do value good employees, and encourage them. Where good employees are valued, people tend to want to be good employees. And this doesn't mean be 24 hour robots. (See previous paragraph, and extrapolate.) Where good employees are respected, it also starts in HR. A place that won't allow reasonable modifications to an employment contract is a place that you should work at no longer than you must. If they won't allow reasonable modifications, don't take the job unless you are desperate. If you are so desperate you don't dare ask, and it turns out to be a good job, ask then (as soon as you dare) about a contract modification. (If they won't, you'ld better sharpen your resume.)
But don't lie, and don't hide your work. That's a way to get yourself in so much trouble that you don't want to think about it. (You might want to stop working on it for awhile, though, until the contract mess is straightened up.)
I think we've pushed this "anyone can grow up to be president" thing too far.
Great, then they should be paying me enough not to need 3 jobs.
The obvious example is you are trying to solve some problem at work. The 6pm bell rings and you leave. At 6:05 you have one of those "ah-hah!" moments and realize the solution. Does this solution now belong to you and not the company because it didn't happen on company hours? I don't think so and in fact it would be unethical to deny them the solution you thought up in the shower. They are paying you as a professional for those solutions regardless of when you think of them.
Also, if you look up the U.S. Federal Labor law you'll see that by law, salaraied employees do not have *hours*. Well, to be more specific, the company can set your hours but they can not doc you for not keeping them. They can only fire you for non following the rules. Salaried employees set their own hours, today 5 mintues, tomorrow 23 hours, whatever. So, for a salaried employee there is arguably no "outside work" hours.
like that contract.
It said:
All your BASE are mine
Years ago, I had - pretty much - the following conversation with my then boss:
Me: I cannot sign this.
Him: Then you are fired.
Me: Then I guess I am fired, since I cannot sign this.
Him: Oh. I'm sure we can work something out.
Me: That's up to you, since I cannot sign this.
Him: Don't worry about it. You do not have to sign this.
That was basically the conversation. It took less than 5 minutes. It was a fairly small company, and it might work much less well in a larger one. But if you've got real skills, don't let the bastards grind you down.
1. You cannot be required to offer or assign your company the rights to any idea/invention developed entirely on your own time without use of the company's equipment, information, etc...
2. UNLESS they result from the company's business or R&D, or result from work you've done for the company.
3. and if you do sign a contract that says you have to turn over your rights, it's unenforceable according to the law (unless it has to do with a contract between the company and the US govt... ie a govt. contractor of some sort)
In other words... even if you come up with the invention down the road, this clause still holds. So it's a pretty good law I think, and applicable even if you haven't patented anything yet. I too, don't have any projects but it's nice to know I'm covered to an extent
The sending of this message pretty much inconveniences everyone involved.
Our HR dept went through a process of standardising our employment agreements, and it was at this point that I decided that I should get some clarification in writing relating to my side business. Originally it was a word of mouth (ie worthless) agreement that there was no conflict of interest.
I had a good meeting with the HR manager and my bosses, discussed the 2 or 3 contentious clauses and came up with an amendment that allowed me to operate my business as long as the activities remained separate.
The ammendment, drafted by the company with my input, was scrutinised by the company's lawyers, but not my own. This was a risk I was prepared to take.
What it comes down to is that the situation will always be different depending most importantly on the company's attitude, and also on what you're willing to negotiate on and how much of a potential conflict of interest there is. My full time job has elements of work that are complimentary to my side business and vice-versa, which turned out to be a plus. Despite that, the actual products/services of the two have a microscopic overlap.
The long and the short of it was that the ENTIRE contract could have been invalidated by me...
Q.
Insert Signature Here
As a condition of continued employment our IT group faced signing a similar situation on IP. While one employee did check with an outside lawyer, I decided to check with our legal department. I spoke with the IP lawyer and she said that stuff done on my own time with my own resources that did not involve our business was mine to keep. While this may not be airtight, it was fine with me.
As others have noted, if you try to modify the agreements you are presented to sign, the most likely outcome is your being replaced by another applicant. A more realistic solution is to take the job and in the event you create something profitable on your own time and resources, keep absolutely quiet about it, quit and wait awhile while you document your work, and then proceed with development.
I agree wholeheartedly. However, there are enough PHB's out there who have no clue about this little fact. And to make matters harder, it may not be the person who's trying to hire you that can veto you and is the PHB. So judging the interviewer isn't a guarantee.
This is fine till a HIGHER ranked HR person hauls in the lower ranker's ass for having incomplete files. What if someone marked that "item in file" as a precondition for employment.
More often then not, you will be faced with a bubbly HR exec eager to "get you onboard", unable to fathom the reason you are getting too worked up about "some routinue paperwork". Even if you spend the time to get it into their thick skulls, putting in an amendment request that ends up with lawyers at one end means you might as well kiss your job good bye.
This is what 'process' does. More often than not, hiring is a process, which cannot handle the exceptions well. And if you insist, the process will be started for someone else.
Dont talk to me about life - Marvin
.sig(Anarchy Rules)
I've done exactly what you suggest with my last employer. They wanted me enough, and I approached them reasonably about it, and my changes were accepted. I made the changes myself, and my modified document was reviewed by the company lawyer who made sure it was ok (I was susprised to find no changes were made).
:-)
In short, I think what you ask for is quite reasonable, as long as you'r fair to your employer and honest to yourself that you really aren't being inspired by the subjects you touch upon during your day job...
Skaag
All those moments will be lost in time, like tears in rain... time... to... die...
Do what I did... Tell the HR rep handing you the stack of papers that you already have a patent pending on some inventions, and you have to review the agreement with your patent attorney.
Then throw it out... If it ever comes up, you never signed anything so there's no contract...
Or you can do what I did at another place that actually asked for it back - rewrite it to suit your needs, sign it, and turn it to HR... 99% of the time they sign it, hand you a copy back and stuff it in a file. If it ever comes up, well, the frigging thing was signed by THEM... They can argue whether or not the person signing was authorized to do so - as far as I was concerned, they apparently had implied authority to do so, or they wouldn't be doing so - thus they accepted it on behalf of the company - changes and all... It's not my fault if they didn't read what they were signing...
Finally - I always modify those things to say that what I develop on my own time with my own equipment off the premises of the employer is my own property and that they have no right to it unless I grant them a license. I further state that what I develop on their time with their equipment on/off the premises belongs to them. I make the agreement expire upon termination of employment...
In going for a job, I asked jokingly whether I could be given llamas as a bonus. They said they would be perfectly happy to do this as it could potentially work out quite well for them. In the end I figured money would be better. =)
The camels are coming. I'm in love.
If you live in the UK, your employer can't claim any irghts to work you have done outside work. If you live in the US, you best bend over and have the lube handy.
If it weren't for the rocks in its bed, the stream would have no songs.
I started with a new firm about 8 months ago. They asked me to sign their standard contract, and I had a read through. Lo, there was such a clause there.
I asked them about it, and explained why I didn't feel happy signing it, and they were suprised that it was even in there in that form! We sat down, worked out a new wording for it (so work done on company time or in direct furtherance of company business is covered, and nothing else), and I signed that. They then made the altered version the new company standard.
So, do talk to your new company about it. Chances are they'll be willing to change it, especially if they're not huge. They may even not realise they've got such a strong clause in there!
This post will enter the public domain 70 years after my death, unless Disney buys another extension.
...because it was clicked using a user account and password that you're responsible for, and that you signed a ToS document for to cover the company in precisely this kind of circumstances.
They can tell you to give up everything you do on your personal time, but how are they going to get any of it unless they can prove that you invented it while working for them?
The appropriate way to avoid the problems you note is to make the contract equitable in the first place. If it presents an equitable employment agreement, employees will have no good reason to alter it.
If the employment contract IS reasonable, it can be a filter that makes sure you hire only reasonable people. If it is unreasonable and not negotiable, it is a filter to make sure you hire only fools. The latter does not strike me as a very good idea!
They're not idiots. But you can react like an idiot, and get treated like one.
But, you have serious concerns, and you would like to talk about them seriously. So, you simply state, in a nice manner "I have some concerns about this contract, i would like to discuss them with you."
Try to set up a time. Before the meeting, markup the contract the way you want it. Even add clarity elsewhere. Make a copy or two and bring it to the meeting, and go through each one. Be ready to compromise, and be ready to fight nicely. That is, before you get there know which concerns are very important to you, and which ones are not.
During the meeting, use comments like "you don't seriously mean that *anything* i create even on my *own* time are to be yours?" If said correctly, they will be on the defensive and smartly throw it back to you "how do you think we can protect our interests?". That's when the markups on the document help.
If they do end up acting like idiots, act back the same way. However, it is doubtful that it will come to that.
Have you read my journal today?
IIRC, and IANAL, but I was under the impression that unless you signed an employment contract for a specific time period, an employer can fire you for any or no reason whatsoever.
It's what they call at will employment.
So unless there wasn't an "at will" clause in the employment contract (and almost all contracts have them), he doesn't gain anything by signing it. If he does sign it, he still doesn't have any job security, and he's just given the company all of his ideas.
The society for a thought-free internet welcomes you.
I had a similar case with a lease. There were some rather egregious clauses - for example, if I was even accused of a crime I could be evicted before trial. What I did was to simply cross out the offending sentences, initial them, sign and return the lease.
The landlord accepted the lease, no questions asked.
Unless the company is really rigorous, in most cases you can simply strike out the clauses you find egregious, sign and return the contract. Most of the time, these kinds of employment agreements are simply part of boilerplate procedure - the company simply buys the forms in bulk from a business services reseller and never bothers to review the details. Keep a copy indicating your modified agreement with the company, and you'll be home free.
The society for a thought-free internet welcomes you.
Unfortunately this is very true. I think part of the problem is also that people in general recognise (or think they recognise at least) skills in their own area much better than in other areas. That's to be expected. But PHBs then are unaware of the fact that they can not really spot technical, non-buzzword-oriented talent... nor do they understand how much skills and overall effectiveness of tech people varies like you said.
It still amazes me that corporations seem to believe that good highest level (CEOs etc) employees are worth anything they ask for (up to millions of dollars in some cases)... yet for people who actually get things done -- CEOs in general are figureheads, for better or worse -- there is this fake egalitarianism, and people are still more or less considered as just warm bodies. :-(
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
I was in the identical situation a few years ago. I concluded: the problem was the lawyers. When each party has their own lawyers, there is no motivation for the lawyers to produce anything that is fair to both parties. Instead, they act to minimize the amount of their effort by making the terms of the agreement as global as possible. My lawyer charged me several hundred dollars for doing nothing but sending me a copy of an existing document he had. I was less than thrilled. The vast majority of the employees declined to sign the document (half a dozen of us) and our employer wisely put it aside before as it just about caused us all to leave. A year later, the dot coms had crashed, jobs were harder to find, and we needed an NDA in a hurry for a contract we were going to sign, so we ended up signing that one, much as we disliked it. My advice is: screw the lawyers. If you have a decent idea; keep it isolated from work (as you have been) and get a trusted friend/partner to front it for you when the time comes.
I am a CEO. I wouldn't regard a potential employee negotiating over an employment contract as confrontational. Employee contracts are boiler-plate and lawyers always ask for the world (as they are trained to.) From my perspective the purpose of an employment contract is to smoke out potential conflicts of interest early on so we all know what is going on and there are no hard feelings down the road.
I recommend hiring a lawyer to review the contract and not worry about negotiating specific, detailed changes. I think that any employer who whines about such negotiation is an employer you are better off not working for...
Ok, so you were deceptive with a legal document. That's not something to be proud of. Being deceptive with business is just asking for trouble *coughenroncough*
00101010
In this case it leads to the conclusion that you have very little power.
A fact which the company will be very happy to take full advantage of.
If you want more power, you will have to differentiate yourself in a way that will cause the company to perceive greater advantage in employing you.
Four words: "Thanks for the coffee."
Business isn't willing to pay for products, innovation and careers, so we get brands, mortgage commercials and layoffs.
Save some money, you don't need to talk to a Lawyer first, you can first let the company know you would rather not let them own your off time created work. If they are amiable, then go to a lawyer and get it worked out. I have not had any trouble getting clauses like that changed, but in my first couple of jobs out of college, I just accepted it.
Most useful reply on the entire story
OK, so all of the discussion thus far is targeting new hires. What about those that already signed an agreement with an employer. Does an employee have any right to ammend existing aggrements? If so, what are the limitations? How would you go about initiating a process like this?
"Failure is not an option. It comes bundled with any Microsoft Product."
No, not really. They handed me one document to read and sign and I in turn produced an alternative document for THEM to read and sign. They signed it.
There was a space of about two weeks between the two acts, since I didn't need to sign the document until I'd flown coast-to-coast (Seattle -> Newark) and shown up at my new office.
There was no pressure for them to sign, and what I presented them was simply their suggested contract with one change that made it acceptable to me (they would not own anything I developed that did not use any knowledge, material or worktime from them).
I could have crossed out the one line that was objectionable, but chose instead to provide a much neater reprint of the document with the change made.
(And yes, they shouldn't just assume, they should read what they sign - it was only one page, afterall.)
Tom
I was in about the same situation - existing ongoing work for a side business, but getting hired full time with an employment contract that says everthing I say do or think belongs to the company. I just wrote in a paragraph at the end saying that work related to my preexisting business is exempted, initialed it, had my new manager initial it, and that was that. I've done this twice, both times the manager was OK with it after they checked with their lawyers.
The last time I was asked to sign one of these (SAIC), there was a section at the bottom where they wanted me to list all on-going concerns that I felt should be an exception to the "we 0nwz joo" principle. It's a lot easier for them to except things that aren't directly related to your new job. Like I listed a game I had designed and programmed, and it was not an issue.
If they've made an offer, and you've gotten to the point of signing a contract, then they want you. Don't assume that if you want a modification of the contract then they'll simply go elsewhere. Propose a modification that protects their side to. They will be most interested in making a distinction between the two domains of the two businesses. If the domains overlap you've got a problem.
When it comes to writing the language, though, they will have a lawyer. You get one too.
As an aside, it may come down to whether the law considers that you were "work for hire" or "professional services". One way to distinguish (in terms of the law) is whether you used company equipment to do your work for them. I always try to use my own computer and software, and only asking them to buy software that others use. I look at it as providing a professional service. In that case, my other pursuits are protected. Only my hours for them are subject to review.
You can't take the sky from me!
It's good to do what's best for you, but it's still rude. I'm not saying you shouldn't be loyal to yourself first (for the reasons you state), at least apologize as you go out the door!!
You also need to consider that if you do something like that, you may burn a few bridges and are they people you want burnt (of course they also may not care).
It's the same reason I would be reluctant to leave in the middle of a big project, though I might be happy to if I thought it sent a message to the people running the show. They never seem to get those messages though.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Having just signed the employment agreement (all 300 pages of it) your new handling orifcer says "Welcome to the company, everything that you make, think, work on belongs to us and into the future" You laugh half heartedly and then think... What he said includes your dreams, your vote, your wife and your kids, even your pay....What the @#%* did I just sign? don't get a lawyer just dont sign it. The more people that dont sign (read 'keep their free will') means that some other more deserving shmuck get the job in the US, and better job much for you come along soon in country other?!? OR...just start your own company and get people to sign YOUR agreements!
"Persistance is Fertile" - Me. I can quote myself if I want to.
What you should have done is made them aware of the modifications you made in the form of a request for the change. What you did was deceptive. However, Feel free to believe whatever will make you feel good about your actions.
00101010
i did that with my current employer. Since I also started a side company, but I asked them prior if there was a problem and as long as I didn't do it on their systems or while I was on the clock with them, they had no legal ownership. Mention to the company that their policy is well beyond "the standard" in the IT and software industry.