Slashdot Mirror
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?"
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.
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>
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.
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
I have only received unemployment in Texas, so that is the only State I know about.
In Texas unemployment benifits are adjusted if a person is self-employed based, on profits.
If he is just starting it is unlikely he is turning a profit.
It is unlikely that there is any confilict.
-Peter
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...
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.
You don't bring the lawyer to the negotiating table with you, or even tell the new employer you have a lawyer. All you do is have a lawyer review the contracts and give you advice, such as "the no invention clause sucks, but that's the norm at this point in time."
The point is, when an employer writes a contract (or when anyone writes a contract, for that matter) they ask for the world even though they're only expecting the moon.
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.
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
I have consistenyl refused to sign that type of agreement - and it has never afected my employment. Most companies throw that in, but very few will refuse you employment if you don't agree. Get a lawyer, get the terms changed. Most of the employers I've had actually gave me the first few weeks of the job to have it reviewed and work out any changes.
The heights of genius are only measurable by the depths of stupidity
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.
Look in the yellow pages under "laywers". Each lawyer's blurb will state what general topics they do best such as small business (a good choice), estate planning, etc. Avoid "If you've been injured, I can get you the cash you deserve!"
A few years down the line, it'll be thick enough to choke a spammer. When leaving, there's a exit agreement clause that you abide by the NDA. Ask for a copy of the NDA you signed (even if you made a copy at the time). This highlights to them exactly what you signed rather their current wad.
One line blog. I hear that they're called Twitters now.
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!
Actually, there's a step before "calling the lawyer" or doing it yourself. You can just ask the clause to be removed or made less restrictive. That way, their lawyer can choose the wording, while you still get what you want. Of course, that only applies when the modifications are minor. In my case, I had to sign an NDA for my master project. I only asked that a clause saying "anything I develop" be changed to "anything I develop that's related to my master". They got the change it themselves and it worked.
The only thing I'd like to add also is to *NEVER* trust an employer (or anyone else) that says "sure it's in the contract, but we never really apply it".
Opus: the Swiss army knife of audio codec
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 don't see why it should be perceived as a threat. When my current employers made the job offer, I was sent a nice letter and a summary of the Ts&Cs (salary, holiday entitlement, etc.) and told I'd be expected to sign a full contract when I arrived.
Alarm bells rang, so I replied saying I was definitely interested but would like to see the full contract first (to check for exactly the type of "We Own Everything" clause mentioned here, coincidentally). The following evening, the guy who runs about half the company turned up on my doorstep about 7pm, handed me a copy of their standard contract, and basically said, "Got your letter, no problem, it's not unusual for new starters with experience elsewhere to ask."
Incidentally, my contract does have a clause that explicitly indicates the company having no claim over anything I do off company time and without company equipment. In the OP's position, I would immediately ask to have one inserted in place of the current wording, mentioning my situation regarding the existing other business if necessary. If they won't acknowledge your concern and insert the clause pretty much immediately, well, now you know what kind of employer they are and that you don't want to work for them. :o)
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
If you're going to start adding new clauses, then it might be worth hiring a lawyer, depending on how closely related your outside projects are to your employer's line of business and how valuable you think your creations might be. You really only need to hire a lawyer once to construct your I-own-anything-I-create-outside-of-work clause, and plug it in wherever it's needed. As the parent said, if they aren't willing to agree to this, then that should be a huge red flag telling you RUN for the nearest exit.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
I'm curious what you do after you decide you want the 'all inventions clause' out...
First off, I was just using that as an example. To answer your question - you simply suggest what you'd like changed: "I'm not comfortable with provision x I'd like it changed to reflect y." They may go for it they may not. After you've figured out what they're willing to do - then you make a decision on whether or not you want the job.
I suppose you could do this without a lawyer, but I'm pragmatic, and weight what I want with what is practica. An employment lawyer is going to give you a pretty good idea what is acceptable in a contemporary employment contract - whether you like it or not is a different issue.
"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/
You modify the document and initial the changes, then have an empowered respresentative do likewise. The last time I modified a contract like this (striking a particular clause) the person doing the hiring said they were not empowered to countersign the changes, I had him get someone who was. The CEO looked at me a bit strangly at first but once I presented my position he countersigned without comment. My real question that went unanswered was why was my future boss not empowered to countersign a contract for his employees?
There are 4 boxes to use in the defense of liberty: soap, ballot, jury, ammo. Use in that order. Starting now.
You really think anyone here had the backbone to challenge an employer's contract?
Wow, it's sad that you perceive that. You really need to learn how to negotiate.
First thing to learn about negotiation: don't make it a confrontation. Instead, frame the conversation so that the two of you are working towards common goals.
I've asked for changes to the past three employment contracts. Ask nicely. Explain what the situation is from your point of view and keep an advocate in the person who's hiring you. That person has already decided they want you and is probably in a fairly accomodating mental state. Don't piss them off and you'll probably get what you need along with most of what you want.
They want to hire you. You want to be hired. They don't want you to take what you learn about their business and form a competitive company. You want to protect your ownership of products and product ideas that you've already worked on. You may also want to protect ownership of new products while you work here (but you don't want to make this case since it implies that some of your creative effort will not be spent on their products, so just try to eliminate wording about them owning everything and this can work out).
From these "common goals", you should be able to initiate a conversation (and changes to the default contract) that makes both parties happy. If you think you need help with changes to the terms and you know a decent lawyer, ask them for the help and expect to pay for an hour's time. Get the full hour of time, though. Ask questions about this situation and about the contract in general. There may be other aspects to the contract that are "iffy" and you may look a lot smarter by bringing them up.
Which leads me to another way to present alterations to the default contract: As improvements. If you can present yourself as fairly sophisticated in similar matters (depends on the job you're interviewing for and how you interviewed), this discussion between you and your boss can be an "us vs. the silly lawyers" which can be a decent way to start a professional relationship with your boss.
Regards,
Ross
P.S. You may even find that this process helps to build interpersonal relationships with HR staff, which is always helpful throughout an employment relationship. HR people have an enormous influence on how you are perceived as they interact so frequently with your boss's boss and even higher up the chain.