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?"
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
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..."
I am a boss. I hire people. It doesn't matter to me. In this case, if I knew the NDA was particularly draconian as this one appears, I would probably favor the person who recognizes the fault and attempts to have it corrected. There is nothing wrong with it. After all, if you don't stand up for yourself nobody else will.
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've heard of several cases where the employee developed something on his own time, using his own equipment, and found that when he started making money at it, the company claimed it as theirs.
I wouldn't trust any "unspoken agreement".
They'll work with you to settle the disagreement in wording until both sides are happy. This happens more often than people think.