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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.
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.
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.
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.
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.
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
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.