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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
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...
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?
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..."
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.
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
If you are respectful and have a lawyer propose a reasonable amendment saying that you own the IP to non-competing home projects unrelated to work, they probably won't give a fuck and will have their legal team clear it. They have better things to worry about -- from their perspective they just don't want some asshole employee taking their secrets, leaving, and competing with them -- but do expect that any changes to an NDA/noncompete will be seen as threatening at first.
If it is the case they're draconian idiots then yeah you'll probably want to move on.
But in most cases, they probably don't care, and whoever is hiring you didn't draft the NDA in the first place (hell, it's probably a safe bet they haven't even read it -- they just paid some lawyer to cover their ass.)
-fren
"Where are we going, and why am I in this handbasket?"
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. Sounds like a risky proposition to me...
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...
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.
Yeah. Expect whoever's hiring you to perceive any changes to legal documents as threats at first, just as you would modifications to some legalese in your contract by your employer to be some attempt at them fucking you over.
You're right -- your lawyer will find a number of other things that need to be changed as well (my lawyer found 5-10 little nitpicky things) and the process of getting these things changed is a pain in the ass, and can strain a relationship. It also takes FOREVER. Unfortunately, it could also result in you not getting hired.
However, there is a good foundation of trust that results from both sides fully understanding an employment contract -- and you can rest easy knowing there are no 'gotchas' or time bombs lurking in the contract that can fuck you over in case things turn sour. I would not work anywhere without that foundation of mutual trust, but the parent is correct in that at some point you have to pick your battles or risk losing the job.
I just finished a five month-long contract negotiation for a fairly high-level architect position at a startup, and it was painful but everyone is now happy -- just keep your cool (don't get pissed off/frustrated), pick your battles, and be willing to compromise.
-fren
"Where are we going, and why am I in this handbasket?"
I'm still on my first contract job, but here's a couple of thoughts:
So your lawyer notices a bunch of things that would be convenient to have in your contract. Don't jump at all of them. Look at them, and decide your priorities. Go back to your new employer with a few versions; a minimalist (My time is my time), a nice-to-have (paid holidays), and a luxury contract (Paid vacations.)
Offer a compromise... Is double-on-overtime worth a few thousand less per year (on average)? Are paid vacations worth a couple dollars less per hour?
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Bah. I've never signed a stock employment contract yet. Some claimed they owned all the IP I produced, related to the company's work or not, done on my time or theirs. That's simply BS.
The easiest way for them to swallow the fact they need to change it is to say that legally you can't sign that paper. For example, you have an ongoing relationship with a former client and your contract with them says that you're required to patch bugs for them. But you've also agreed to sign over the IP of those patches to the client as well. If you signed the stock agreement your new company would own the IP of those patches too. So you legally can't do it.
If you phrase it that way, they'll see that you're not being unreasonable, and aren't trying to screw them over. They'll probably also see that you know your legal obligations and don't treat them lightly. Because of this, they'll probably be willing to make the change. So when they do make the change, make sure it's not too restrictive and lets you own the IP of any love songs you write to your gerbil on your own time.
You might get away with it if you haven't received your first paycheck and/or haven't seen any trade secrets, IANAL, but a judge would say that you accepted the contract by accepting the job.
[Fuck Beta]
o0t!
They'll work with you to settle the disagreement in wording until both sides are happy. This happens more often than people think.
An agreement would give your employer the right to the work you do outside of normal employment, and which is not directly related to the business of your employer may not be legal in your state. i.e. even if you did sign the contract, that portion of the contract may not be binding. Contacting a lawyer is probably the best thing to do.
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.
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