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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?"
You didn't cash on unemployment checks while you started this business, did you?
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
IANAL, etc. The point is that you need a lawyer. This stuff varies by state.
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.
Wow... that's a wonderful analogy! Having the geek ego that I do, I often assume I can understand just about anything - the power of logical analysis is applicable everywhere, right? However, eventually I've realized that every profession / specialty has its own sets of assumptions and terminology that must be learned, and in the legal profession that set is HUGE. So yeah, get a lawyer - someone who knows that profession.
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.
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 had a job where I was handed a company cell phone in my first seconds on the job, but I was not handed a company handbook during my first full week on the job, to the point that I had to write an e-mail to my boss and CC in the human resources chief to actually get a copy handed to me.
I found it hard to believe my boss would let me walk around for a week with a company cell phone and not give me a copy of the acceptable use policy. I quickly realized that I was being set up for failure... and got myself out of that company as soon as I could.
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.
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.
I think you somehow missed the point here. He is asking if it is possible to add a suplement to a NEW contract, so no sending out resumes, no "keeping" the job,...
As for me, here in Belgium, I have a company together with some other chaps. My current work is in the line of what the company is doing. I discussed this with my employer, and no problems were found, as long as I keep both of them really separate. No logging in to servers, not answering phones,... Fair deal.
I always argumented this as "you asked for people who dare to take a risk, want to work hard and have some insight into business and running a business". If you don't score with that, the HR-guy is afraid that you might take his job.
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.
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!
The result of hiring a lawyer may not be that you need to change the contract. Many states have laws limiting what may be included in a NDA or No compete agreement. As a result the "Anything you invent, anytime, anywhere" clause may not be binding.
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
then they're either going to go on to the next candidate
Yet, if they were making an agreement with another company, they would expect legal representation. Funny how when employees try to avail themselves of reasonable business practices, the company throws them out, isn't it?
Business isn't willing to pay for products, innovation and careers, so we get brands, mortgage commercials and layoffs.
I've seen a couple. The worst one essentially stipulated that ANY endeavour outside office hours that was of a commercial nature (even if say, I had written a novel and was making money) because the SOLE property of the company. This was a company that manufactured and installed commercial alarm systems...and the job was for a 21K a year (Canadian) tech support job.
At first I thought it was simply an unintentional mistake...but when asked about it to my possible future boss, he flatly said it "Oh no, that's correct, basically if you were to earn money from anything you work on outside office hours, we feel we contributed and therefore its our product...its happened before."
At the time (this was 95-96) I was desperate..but not desperate enough to sign that.
"I'm not a procrastinator, I'm temporally challenged"
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.
I basicly went to the owner and said "I can't sign this." and explained why. The funny thing was he hadn't even read it himself. He got a boilerplate contract from his lawyer and just passed it on. So he handed it to me and said "OK, rewrite it." I did, on my own. I only weakened the clauses I didn't like and passed it back. If I had really torn it apart, they probably wouldn't have liked it. I did eventually sign my new version, and it worked out fairly well. They didn't even hold me to some of the conditions in it when I left. It was all pretty friendly.
Measure the employer as much as the contract. It's not always possible to gauge them if you don't know them well, but if they work with you in the beginning, it can tell you a lot about how they will react in the end.
There is nothing so silly as other peoples traditions, and nothing so sacred as our own.
these things are changeable and you do NOT want to work there if they are not.
;-)
Sorry, but that's bad advice. There are certain things that are changeable and certain things that aren't.
If you work in tech support or repair, sure, then there may be a concept of "on your own time" and an employer may not even be able to make claims to anything outside your working hours.
But if you are VP of Engineering at Oracle, you can't work as a VP of Engineering at Microsoft's database division, whether it's "on your own time" or not.
In fact, above a certain level of skill, pay, and/or education, both the law and business practices just stops recognizing a concept of "on your own time". (You'll know when you reach that level
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...
It is interesting that you would suggest this. A friend of mine was working for a computer company and did some computer consulting on the side.
He was installing a backup system for some big company, and didn't realize that the backup system was incompatible with their database. The result was he destroyed their entire database. Very bad situation. They were threatening to sue him.
He hadn't billed them, or presented any contract to them at this point. This company had actually purchased their PC's and some other services from his employer, so he let his freelance consulting services fall under services provided by his employer. His logic was that he would rather loose his job then pay the legal fees or damages. Since he had a similar (we own you) agreement with his employer that was the way it technically should have been.
Turns out the employer had a no-fault clause in a service contract this company signed, so they couldn't sue anyone. The whole situation just kind of went away. As far as I know his employer didn?t even reprimand him for it. Not sure how he worked it out, but he kept his job and got promoted a few times after.
"Anything is possible with enough programmers, time and pizza." (Substitute caffeine for time as needed.)
As for bringing a lawyer in, not necessary, you take the NDA to the lawyer. Anyone pressuring you to sign any contract without competent legal advice is not to be trusted. If your potential employer is pressuring you to sign an NDA without review by a lawyer, or tries to prevent you from getting same, I would reconsider working for them under any circumstances. If they aren;t going to respect your rights as an applicant, what the hell do you think they'll do when they get the hooks in.
I just went through this, from one side, and will be doing more from the other. My boss had no issue with me getting the paperwork looked at by a lawyer, and nobody quibbled at the changes my lawyer requested. It was a painless process, and one which left me full rights to the software I develop outside of work. I won't bore you with the details, but it is possible to get a fair NDA.
On the other side of the coin, I assure you, I would not be likely to hire a developer who didn't want to review the NDA with his/her lawyer. I hire dev people for their brains, and their demonstrated ability to use them. Not having your legal stuff reviewed by a lawyer is not consistent with this requirement.
"Talk minus action equals nothing" - Joey Shithead, D.O.A.
"Talk minus action equals
I'm a reformed geek, now in law school, and I can tell you that reliance on these statutory provisions to protect your interest is a sure fire way of loosing your IP rights. Judges are loath to invalidate clauses in a contract. They won't do it unless the clause is ridiculously egregious. Since judges see legalese and the "ask-for-the-world" clauses in contracts every day, the chance that a judge will think that your NDA is ridiculously egregious is slim. Also, even if a judge decides to invalidate a clause, they are going to make it just barely legal, which may not protect you in any meaningful way. Finally, even if you "create a paper trail" of your disagreement with the breath of the clause, courts will look first an foremost at the language of the contract. Only if the language of the contract is ambiguous (which it won't be) will the court look at your paper trail of dissent.