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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
You didn't cash on unemployment checks while you started this business, did you?
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.
Whether you like that or not, it is likely the way it will be. Sure, some people would say, "well I wouldn't want to work for a draconian company like that anyway." Some others would say, "I have been unemployed for months, perhaps I should take the job and swallow my pride."
YMMV.
Sounds like they're going to have an opening.
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...
You could just teach them the error of their over-litigious ways by giving them the "rights" to the next thing you "create" after some cheap mexican food and seven cups of coffee.
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
and a pony.... I want a pony as well. I think you are about as likely to get a pony as you are to get a change in the standard employment agreement.
I got a similar form the first day of my last job. I didn't hand it in for two years. They asked again the day I was planning on quitting to start my own company. They refused to believe that it was a coincidence, but I never did sign one.
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.
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?
IANAL, etc. The point is that you need a lawyer. This stuff varies by state.
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 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.
the success or failure when dealing with wide reaching employment agreements such as this depends how desperate you are to get this job.
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
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.
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.
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 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
I've been faced with many a contract that has crap to the effect of "we own everything you do whether before, during, after us, for us, or unrelated to us", and "you will not work in any field competing with us for a period of..."
I usually start by saying "I've crossed out all the unethical crap that you'd never sign yourselves..."
mindslip
When I was signing my contracts for the job I have now (have had it for three years or so) the initial contract had a very vague and broad reaching clause about what they considered a conflict of interest. I work for a web hsoting company and they basically said "anything that deals with the web is a no no for you". I said "there is no way I am signing that, it needs to say *this*". They accepted my modfided wording to narrow the scope to what we really do and all was good :)
Unstable Apps: Our Android Apps Don't Suck
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...
The best situation is to hire a lawyer for yourself but take care to have somebody who's not a laywer at your company (but still authorized to sign for the company) sign it. It will generally involve a few cross-outs here and there. Many of the claims on what you do on your own accord aren't legally enforcable, but it's still better to get things over when you start as opposed to having to answer to legal paperwork.
;)
My previous employer made the attempt. I consulted a lawer, had a few things crossed out, have them sign it, and no problems occured. You just have to paint yourself as a reasonable person and explain that you won't be using their resources or doing anything on company time, *ever* and it will probably just be open source hacking or whatnot.
A now-bankrupt publishing company tried to make me sign a really awful contract for some writing work, so I just walked away from the whole deal.
My current employer made no such attempt, which saved me much trouble. They also don't outsource, treat their programmers well, provide free lunch, etc. All hail the company.
Gentoo Sucks
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.
If a company wants to own your personal time efforts, then they should be willing to pay you for your personal time at the same rate as your regular work hours.
To give in to a demand that your personal time creations are owned by the company reduces you to nothing more than a slave, with no property rights whatsoever. Western society escaped that viewpoint a long time ago, no matter what a work-contract may have you believe.
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.
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.
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 version of the agreement you describe might make the company nervous, because it allows for the possibility that you could pick up all sorts of ideas at work and then use them on your own time on your own equipment.
If you're confident there's no conflict, underscore that. What might make them more comfortable is including a clause that gives them ownership of anything you create that's related to their business, regardless of where you were and what equipment you were using when you did it, but allows you to keep ownership of anything unrelated (done on your own time, on your own equipment, of course). After all, if you're on salary, there really is no such thing as "your time" vs. "their time", and I know I've done company work on my own equipment when it was more convenient; the only bright line you can hope to draw is "your business" vs. "their business". Offering to sign a "non-compete" agreement might help in that regard, though it could also tie your hands when/if you decide to leave.
http://alternatives.rzero.com/
sign an employement contract that makes ALL your inventions their property.
It seems to the be the standard bioletplate for a lot of employment contracts, but I've refused to sign 3 or 4 contracts for this reason, and never had a problem getting the employer to change it before taking me on board.
"Old man yells at systemd"
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.
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.
If a question comes up, I think that your reasons behind the change are very good and if you present those reasons properly, the company should have no problem accepting them. I've changed contracts with companies I've worked for before, pointed out the changes to the hiring manager, and their response has always been, "Okay, sure, whatever, when can you start?"
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
Yes, consult with a lawyer who has experience in this field AFTER checking if covenants like this are even enforcable in your jurisdiction.
I have heard, and IANAL either, that many times employers can not control your creations made outside of the workplace even if you sign a contract saying so.
The only "iron clad" similar item that I know of are commercial airline pilots and it is a cap on their total flight time by the FAA, not any employer. IIRC, they can only fly 1200 hours per year at the controls of any aircraft per FAA Part 121 (at least that is what it was years ago). If they "cap out" because they were farting around in their own aircraft then their employer gets pissed. Okay, make this paragraph all past tense as I have no idea what they have to put up with now.
Eve Fairbanks says I drive a hybrid!LOL
A copy of the law can be found here.
The many body of 2870 is below. 2872 requires the company to notify you of this.
-bri
Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
Result from any work performed by the employee for the employer.
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.
This is mostly a state matter, and varies from state to state. Most states have laws that do not allow this type of agreement, but not all
Courts generally will not uphold any agreement that something is owned that the company did not pay for. However courts [in some states] may agree your contribution to some project is company property if the company pays you extra for it, even if you didn't intend it that way. You might not like the payment though. Its been challanges in courts a few times, and it comes down to state laws, so depending on where you live you might or might not win.
Generally it comes down to don't do something that will compete with your company (ie don't write for CVS if you work for a version control company), and the company does not own your time. This is mostly fair, but only after the lawyers fight it out.
..not everyone can afford a lawyer. I recently started a new job that had a very inclusive IP clause, basically stating that everything I did, whether related to work or not, belonged to the company. I asked them to modify that to exclude any work done independent of company projects and done using only my own time and resources, or to give me a signed letter from the CEO stating they would not pursue ownership of IP I developed independently.
Ultimately, they amended the agreement. They weren't trying to gobble up IP that their employees might work on in their spare time; it was more of an anti-compete clause to prevent someone using their internal knowledge of projects to develop competing software. The new agreement was acceptable to me, and we were able to move on.
The bottom line, though, is not to just accept what you're given. If they've offered you a position, they want you. Along with that comes accepting that you are an individual who may have your own ideas and projects, and they they simply do not own you. I fought for my rights, and so should you.
SAGE has sample employment agreements online for just this purpose. It gives legal examples to use to add to or modify your existing employment agreement: http://www.sage-au.org.au/osda/
PepperHacks - Hacking the Pepper Pad
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
Is this a small startup? Or a major company? That's a critical difference. At a small startup you're incurring a lot more risk, and your potential employer should be willing to negotiate a little.
At a bigger company, good luck. Even though the risks may be as high, the HR clerk you're working with won't want to discuss it. Either take the job and deal with the contract, or look elsewhere.
1. I wonder how legal these sort of contracts actually are. I can't honestly believe that a court would allow a company to owns its employees minds in their spare time. I have heard horror stories about employees being asked to turn over their own projects that have nothing to do with their works business just because their employer thinks they might be able to make a buck on their spare-time work. Has anyone actually challenged these in court?
I don't know whether it's directly applicable to the corporate world because the case was at a university, but some years back there was a case where someone employed as a researcher at the University of South Florida developed something completely unrelated to his job, and did so on his own time, but it ended up as a criminal theft case when he tried to patent what he did. USF said that they owned his invention because it was in the same general field (chemistry, I think), as what he was doing for them, even though it had nothing to do with the research he was hired to do.
Eagles may soar, but weasles don't get sucked into jet engines...
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 had to do this just last year at the company I work for. They wanted me to sign a "we own everything you create in and out of work" agreement. I naturally balked at this. I simply asked them to change it to they own anything created on company time or directly related to the company (to cover them in case I made something extremely similar to what they are making at the same time). I had to explain why I wanted this to the HR person (to which I simply explained that I have a web page, and the way it was written, they could make me alter anything up to and including my personal web site just because they didn't like what it said, even if it was not related to work). They had no problem with my revision and made the changes and I signed the form.
That said, if they refuse to make reasonable changes, you probably don't want to work there. It sets a precedent that they feel they own you and you will do as they like or else, and that is a very bad precedent to have set before you even start working there. If they feel that way now, what will they be like once you are actually their employee and have signed the agreement?
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
The bottom line is that if laws always supercede any contract you sign and if the contract comes in conflict with the laws it cannot be enforced. And, there is such pesky thing they call "Bill of Rights" which protects your right to free speech and privacy.
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!
First, I do not like the idea of companies laying claim to off-hour creations. That is ridiculous. At this point it is very redundant in this thread to say, "Get a lawyer to make the changes", but the recommendation is a good one.
As long as you are asking a lawyer, could you ask another question: Do these agreements give companies more liability than they realize?
Companies ask employees to give up their IP such that the company would be able to profit from off-hour employee brilliance. Consider the case where off-hour employee brilliance leads to creating something that does a lot of harm in the community. In turn, that harm leads to lawsuits. It seems to me that the employee could pin the negative consequences to the employer.
Clearly companies are responsible for on-hour actions good or bad - within reason. On the good side patents and copyrights can lead to new revenue. On the bad side new products can violate other companies' IP and lead to financial penalties. Do agreements like the poster describes cause companies to take on the same potential risks and rewards for off-hour creations?
Sounds like a situation ripe for abuse by all parties involved.
They'll work with you to settle the disagreement in wording until both sides are happy. This happens more often than people think.
When I built my house through an architect, I had a lawyer look over the contract and suggest what was not in my interest. In subsequent discussions with the architect, we modified the contract until we were both happy with it (mainly clauses relating to arbitration).
The important point is that we at all times had a friendly discussion about what we both wanted out of the contract, and both acted at all times like differences were small bumps to work around, not deal-killers or screw-me-screw-you options.
As long as you're polite and friendly about it, you can say "I'm not comfortable signing this contract as is, specifically because of these parts." Go in with your reasons and your alternatives (that should be acceptable to them as well as to you). Show that you understand their concerns, and how they're trying to protect themselves (in the IP case, they don't want you to become a millionaire instead of them by working on their ideas in the evening). And be prepared to walk away with a smile and a "too bad, maybe another time" attitude. Most especially, push for clarification of terms and limits, rather than "how can I protect myself from getting screwed?" approach (even thought that's what you're doing).
IANAL, and it would be a good idea to run it by one regardless.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
Many posters have referred to this clause/agreement as an NDA. NDA stands for Non-Disclosure Agreement; ie: you can't tell anyone anything about your work. That is not what these employment agreements are, they are essentially MDAs (Must Disclose Agreements), they force you as an employee to tell the company everything you create while an employee and for a certain amount of time afterward.
To follow the letter of the agreement, you must inform the company every time you build something, draw something, think of something.
According to the agreement if you have the thought that it might be nice to build a BBQ pit, the company owns that idea and the BBW once it's built. If you explain it to your boss or the HR department this way they will should see the clause a rediculous and agree to a change.
I've never seen an agreement worded the way the author says this one is, all my agreements limited themselves to ideas, products or software of business interest to my employer, and they didn't automatically own it, they simply had first right of refusal.
As a suggestion to the author, see if they will change the wording to something like:
You agree that the compnay shall have first right of refusal to any works you create while employed with the company if such works could reasonably be deemed of interest to the company. Works may be ideas, documents, sofftware or phyisical constructions created in whole or in part by you.
This is (IMO) a reasonable clause for an employment agreement. It protects the company from you making lots of money from their resources, and protects you from having your life belong to the company. If an average person (read: potential jury member) can't see any connection between your work and the company hen you don't have to disclose.
Article X: The powers not delegated... by the Constitution...are reserved...to the people
Don't get me wrong, there is a line you cannot cross, regardless of where you work.
If I hire you and tell you to do something and do it "this" way you had best do it and do it the way I told you to. But if you think your way is better there is nothing wrong with pointing that out on the side. Everywhere I've worked, in all ranges of positions, this kind of input is appreciated.
To publicly challenge the plan is a mistake though. This is not seen as constructive. It is seen as disruptive. Bring up the ideas in private with those who made the decision in the first place. If you're right you may get praise. If you're wrong, they'll likely point out why. Either way, you're better for it.
If that gets your labeled as a boat-rocker then go find another job ASAP. Your talent is not being appreciated. Contrary to popular belief, there are jobs out there.
I heard the following story during my time in Microsoft's Windows NT group.
Dave Cutler (chief architect of Windows NT and well known has having a rather "abrasive" personality) had to attend an employee orientation meeting, just like every other grunt in the company. A big part of the meeting is the signing of Many Confusing Contracts, especially the one saying "everything you create during your employment belongs to Microsoft".
Dave refused to sign it. The HR dweeb running the meeting told Dave "You don't understand. If you don't sign this, I can't hire you."
Dave replied "No, you don't understand. You didn't hire me!"
In the end, Dave didn't sign the document.
AMENDMENT TO EMPLOYMENT CONTRACT
Exceptions to Paragraph 3, Subsection (x): Employer acknowledges and was advised prior to employment that Employee is employed as a freelance Web Developer both directly and through his business, Insert Name, Inc. Employer further acknowledges that in the course of that employment and consultation, employee will invent and devise solutions to problems the could be directly or indirectly beneficial to Employer, but Employer will have no right to such inventions or solutions developed for other clients belonging to Employee or Insert Name, Inc.
Secondly, Employer acknowledges that Employee, through his prior work experience, possesses unique solutions and programming developed on his own and with other employers, and it is this unique knowledge that ultimately lead to employment at Hiring Company, Inc. Given the number of programs and solutions developed in the past, it would be impossible and an undue burden on Employee to disclose every item listed in Section 5, Past Inventions And Discoveries. Employee can agree to not breach any previous non-disclosure contracts with previous employers so as not to endanger Hiring Company, Inc. This shall constitute an exception to Section 5 of the employment contract.
Employer agrees to strike the word "indirectly" from Section 6 "Non-Competition Agreement", and Section 7, "Non-Solicitation Agreement, and further acknowledges that Employee shall continue to own and operate his consulting agreements and business, Insert Name, Inc., and such business does not constitute competition or conflict of interest.
Oooh, this is an *excellent* point. My understanding is that, by accepting compensation (ie, paycheque, etc), you are probably implicitely accepting the employment agreement.
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.
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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 also write books, and my employer has been happy to disclaim ownership in the material as long as it doesn't enter into their business space.
It varies by employer of course. My previous employer took 4 months to make these kinds of decisions; my current one turns them around in a day.
I've done it on just about every position I've taken, or every position that had such strong wording.
The odds are they have no interested in stealing from you. However, you have every reason to protect yourself legally.
Just explain that you are completely willing to sign the document to ensure that their intellectual property is protected, yet you also need to ensure that your intellectual property is protected. I haven't met an employer or client that didn't understand this position.
You rewrite it in language very similary to what you described, adding very small clauses that clarifies that you are only giving up ownership for Works for the company, which only includes Works created during time in which the company paid, or works deliberately contributed by you.
Make it clear that you will obtain written authorization before introducing any other Works in their product, which includes works created on your own time. This is their primary concern. They want to be sure that anything you contribute to their product is owned by them, even if you develop it on your own time. This is understandable. They have the right to own 100% of what you produce for them. This, I suspect, is why they have this overly broad clause to aquire everything you create.
With very few additions, your contract will accomodate your needs.
Be clear about what you are changing. Honesty is important to gaining trust. In Microsoft Word, have tract changes turned on so they can see the exact changes.
I usually can resolve differences within a day or two. Then, I sign, and I'm on a new project.
It's more complicated if you plan to offer your works for a license. However, this isn't the time to negotiated it. If I ever have to license my works to them, I will ammend any previous agreement regarding intellectual property. Since I promised to obtain written authorization anyway, I can ensure that this written authorization clarifies that it ammends and overrides any previous aggreement regarding IP ownership, being replaced by the licencing terms.
If you get into licensing though, you might want to consult a lawyer. I only know that I can negate the clauses you described successfully so they are explicitly clear that it only applies to Works they pay for, or contributions I deliberately make to their product.
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...
I too was laid off and started a consulting a business, then took a full time position and desired to still consult on the side. One of things you might've missed in your agreement paperwork is that most employers also have a clause the prohibits you from working for any other entity other than the direct employer. In my case, I chatted with them verbally and explained that I would continue to consult on my own time (after hours and on weekends) and that they could see access and firewall logs at anytime to validate that I wasn't using company supplied tools to perform my sidework. Also, I agreed that none of my sidework would be to any of their competitors or other companys in related fields. Once we agreed on that verbally, I asked them to redraft the employment contract to allow me to do side work *and* modify the agreement you mentioned that basically says anything developed locally (onsite) or remotely while doing work for them *and* connected via VPN was their IP, but nothing else.
"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/
Does that mean I get to outsource the lawyer's job to India at a tenth of the salary of a lawyer here? At $20/hour vs. $200/hour, that turns out to be pretty cheap.
Hot damn...where do I find one of these guys?
I've walked away from numerous contracts that stipulate, in various ways, ownership off all intellectual property during the term of the contract. Everyone wants the most favourable and airtight (sometimes meaning vague) terms--so do you. I am often successful when I point out that, as a advisor, I usually have my hand in several projects at once, I am being hired because I have specific domain knowledge that I am sharing, I make my living sharing my specific knowledge, and I am not a full-time employee (FTE). As an FTE, you will usually have less leeway. Be prepared and calm, make your case and move along quickly, don't drag it out. Most companies will not take a contract or NDA they didn't write, but it helps to have sample clauses and arguments that have been written or cleared with a lawyer ready that can speed along modifications. Things to watch for and attempt to modify would include: - All IP, products, inventions, etc., developed during the term of the contract - modify to be relevant in nature and/or during work times. - Will not engage in or assist in business activities that are the same as the company's for NNN months - if you can't chuck it, narrow the scope down in nature and time. Is IT, or your speciality, a business activity? Do you know all their current or planned business activities--they won't tell you.. - Cataloguing IP - Do not engage in cataloguing any intellectual property so there is a "check list" of who owns what. It will never be complete, it will be a one way process, and you have just given away a stack of IP. However, do keep a notebook of IP you think is important, it may come in handy years later. Also watch how you get paid and make sure termination clauses are equitable in both directions.
My company had an agreement to sign. I never did...couple years later, they had a new employee contract to sign, and said sign or leave. But, you could either sign and send back snail mail (I work offsite) or click on an 'I agree' button on their website. How binding is this I wonder?
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
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
I was in the same boat, asked to sign the same thing. I simply asked them to change it, and they said "no problem" and did so. I even had them amend the names of some existing projects of mine as specific exceptions to that clause.
While my experience of precisely ONE doesn't amount to much, statistically, I bet you'd have a similarly easy time of it at any small company unless it's being run by an absolutely insane dictator. Nine times out of ten it's just some boilerplate legalese thrown in by the company lawyer that the owner doesn't even care about- the guy who hired me didn't even know it was there.
Hint: think about human nature and laziness. Supply your own suggested, amended text, and they'll be much more likely to change it than they would be otherwise. Less work for them.
At a larger company, I bet you'd have a much tougher time getting that change done, just because there are more layers of red tape to go through, and maybe a fulltime legal department whose egos and anal-retentive preferences are at stake, as opposed to an independent lawyer whom they get in touch with three times a year when they need a little legal work done.
Good luck, and kudos for noticing that absolute B.S. in the contract.
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This post illustrates several of the common misconceptions about copyright law. The phrase 'copyrigting programs' does not make sense. Copyright is not a process, it is a physical attribute. Every physical manifesation of an idea has a copyright, just like it has a color. You can't 'copyright' anything. You can assign the copyright to another party, you can register the object with the U.S. Copyright Office, or you can place the circle-c symbol on it. That's not the same as copyrighting.
In general, whoever creates the object (photograph, program, song, whatever), owns the copyright. There are specific exceptions, however. The one applicable to here is the exception called 'work for hire'. Anything that you produce as a result of employement belongs to the employer, unless there is an agreement to the contrary.
The definition of work for hire in the copyright law is:
(1) a work prepared by an employee within the scope of his or her employment; or
There are some additional defitions, but none that are relevant here. Clearly, if these programs you create fall within the scope of your employement, your employer owns them, not you. You can't copyright them because you don't own the copyright.
So why do folks register copyrights or put a copyright notice on a program? You can think of it like putting up a 'no trespassing' sign. Putting up the sign does not make it illegal to trespass, it just makes it harder for someone to claim they didn't know that it was illegal to trespass. Putting the mark on the program does not grant you any more legal rights, but it removes one of the common defenses of infringement,innocent infringement. If you put the copyright mark on the program, no one can claim they didn't know that it wasn't in the public domain.
I suppose it depends on conditions in the job market.
Except this isn't just a niggle, its a major land grab attempt by the employer, and is illegal in many countries and states
Illegality be damned - it happens.
It really depends on the employer. At a larger firm, staying legal is usually a big deal and you could consult the company hr ethics patrol or whatever. At many smaller companies, it's just "how it is" and you can either "work 5 illegal minutes every day and remain employed" or "spend the next couple years trying to squeeze water from a rock while spending money you don't have on a lawyer who won't work on this crap."
Every job has plusses and minuses. In some job markets, you have to accept more minuses than plusses while you wait for something better. And sometimes you accept working 5 illegal minutes in order to keep a job that's really quite good. You don't strain at gnats if it means swallowing the camel (unemployment).
If this guy can do better, great. If he can't, he should be careful about managing how he appears to the company. Tread lightly, and keep an eye on the job ads.
Let's not stir that bag of worms...
I have pushed on this one probably more than anyone. I lost my internship from Sun (I wasn't fired, I was "un-hired" since I never satisfied the hiring agreement). And this was a time when I needed the money.
I spent weeks on it, including talking to people like Gosling and the then CEO of JavaSoft. My conclusion is that at a place like Sun, you aren't going to get them to budge at all.
Remember you "submit" an application; in other words, you perform an "act of submission" to the corporation. It struck me during this time while waiting in a lobby in one of Sun's sprawling non-descript buildings that it was like in ancient Greece when people made an offering to the local gods. My high school History teacher pointed out to us that a temple of Athena was a collection point for a non-trivial amount of resources which were then used in various ways by the preisthood; it functioned as a means to route resources around the community. Now we have corporations instead. What struck me that the have in common was that humans are too weak to take care of themselves, so we invent these gods/corporations to take care of us and then we give them the means to do that. It only works if you submit your will to the local god. You may not like it, but that's the way it works.
I did manage after several hours to get one word changed in the agreement when I joined a startup at the very beginning: they dropped that they owned any thoughts that I "conceive", leaving just those that I write down somewhere in some sort of medium. I'm sure that I was able to do this only because it was the very beginning of the startup and I was important to them.
> agreements such as this? How did you approach management with your modifications?"
About 10 years ago I was an independent software consultant who worked for a lot of big companies. I ran into this exact problem while chasing some business at Eli Lilly. When I tried to negotiate for ownership of the projects I would be working on after hours (and off the clock) their legal team quickly decided that I posed too much of a risk to Lily's intellectual property and the entire offer was rescinded.
In hindsight, I can see how it happened... as a drug company with lots of multi-billion dollar patents their IP is more valuable than anything else. So their legal department is maniacally focused on protecting the corporate jewels, even if it means going overboard on some poor little guy who was going come in an build a document workflow system.
(As an aside: Two weeks later I signed a six-month contract with Mobil Oil.)
I would handle this problem the exact same way if offered the chance to change anything. Signing an agreement you cannot agree to is worse than moving back in with your parents as a grown man.
That little cautionary tales aside, employment contracts are highly negotiable and should be reviewed heavily before executed. My favorite negotiating tactic is to read the offending term(s) out loud to my hiring manager and ask him if he would agree to this if he were in my shoes. That one has always worked. I last used this on a Silicon Valley lawyer who was my company's General Counsel. He told me I was the first new hire to actually read the damn agreement. This clearly earned me his respect.
Another nice maneuver is to ask the other person "is this fair?" or "Why would this be fair?"
Asking someone intelligent to justify or explain a stupid contractual term is usually a great way to get it removed from the contract.
That's what's wrong with the business world these days. Everyone is too afraid to stand up for what they believe in. People will talk about what they wish they could change all day and then not do a damn thing about it. The only way we are ever going to get treated fairly is if we stand up for ourselves and each other. The only reason companies get away with such clauses is because we let them.
"A truly wise man realizes he knows nothing."
"So we went to Atari and said, 'Hey, we've got this amazing thing, even built with some of your parts, and what do you think about funding us? Or we' ll give it to you. We just want to do it. Pay our salary, we'll come work for you.' And they said, 'No.' So then we went to Hewlett-Packard, and they said, 'Hey, we don't need you. You haven't got through college yet.'"
--Apple Computer Inc. founder Steve Jobs on attempts to get Atari and H-P interested in his and Steve Wozniak's personal computer.
There's only one thing to do when dealing with this kind of contract involving this much money: lawyer up. Don't be combative about it. If asked just politely explain that you don't have the necessary expertise to adequately support your interests. If a potential employer a) can't understand that, b) is offended by such an act, or c) tries to talk you out of lawyering up then that employer should no longer be considered a "potential employer" but should instead not be considered at all. Don't sign any contract that you don't feel comfortable with. If the employer won't be flexible and/or understanding of your position then you shouldn't even consider employment with that company. Walk.
The moment you work on code on company time, use company equipment, or use company code, you are working on code that is no longer your own.
Anything outside is fair game, including things simialr to what they produce - the world is full of examples of people leaving a company because they think they can do the same thing better. And that's perfectly fine, yes the company is training you but they are directly receiving the benefit of that training. That's why it's also considered rude to leave a company right after some major training.
The way a company can combat a person leaving to work on something similar is to listed to what the person has to say and really reward them for good ideas. The people who have bad ideas, who cares if they go off to compete with you?
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Yes, it is the rule rather than the exception FOR SPECIFIC CASES. For example, if you worked for Microsoft and you wrote a video game during the weekend you could run into a snag if you tried to sell it on the side--even if you worked in the receiving dock of a warehouse and weren't paid to write a single byte of code.
Microsoft makes money producing and publishing software of all sorts (not just games) so regardless of what your position in Microsoft is or what time of day or week you did the coding, you could very well be "conducting Microsoft business" as defined by the employment contract. Most likely you would be compensated for that work if you disclose it up front (my employer pays good bonuses through an "innovation rewards" type of program). Of course, with Microsoft it might be a different story--just ask Wes Cherry how much he got for creating the Solitare game packed with all verstions of Windows from 3.0 upwards.
However, there are limits to what employers can legally claim from their employees. For example:
1. The employer CANNOT force employees to hand over inventions, copyrights, patents, etc. that the employee owned prior to being hired (IP ownership clauses CANNOT BE RETROACTIVE).
2. Employers CANNOT restrict an employees activity outside company time in matters unrelated to the employer's business--in most cases there is explicit legislation in place preventing that, and in others courts have generally ruled in the employees favour.
This means that if said MS employee on the loading dock still had some income rolling in from a shareware game he wrote in High School or released a code library that was incorporated into competitor's software before he was hired by Microsoft, his employer CANNOT assert ownership over that material. Generally this limitation is enforced in law to prevent current employers from compelling employees to violate NDA's made with previous employers (especially competitors).
Also, if this guy decided to sell real-estate, (or Amway or whatever) on the side, provided it isn't software related, MS has no claim to the income he derives from those activities, nor to the techniques he uses to be successful.
In your employer isn't as all-encompassing as Microsoft, you'd likely be able to make money selling your videogame, even if you're a programmer for them. For example, if you program for an industrial controls company. When in doubt, however, it IS best to cunsult with a lawyer.
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.
I'm an engineer, and have been CEO of some venture-backed startups. I think your message doesn't point out an inconsistency at all.
The refusal to modify a standard employment contract is just an indication that the employee in your example has very little value above another employee who doesn't want to modify the standard contract. If the employee in question were a star CTO or a hotshot VP Sales, lawyers and negotiation would be expected as a matter of course. A cubicle drone -- well, there are a lot of those out there.
Contracts with companies are handled in exactly the same way. If I want to put together a distribution agreement with a valuable systems integrator, you bet my lawyers and my accountants will be involved. But if the company that sells us office supplies wants to change our standard terms, we're done -- we just hang up the phone.
We can't afford to expose the company or put together some hodgepodge of contracts for just anyone. It's not just that our attorneys cost $400/hour -- it's also that we can't afford to get into situations where we limit our future freedom of action or end up with a web of different agreements that no one remembers until they come back and bite us on the ass two years down the road.
Finally, many Stockholder's Agreements for preferred stock (i.e., one of the agreements that says what the VC's rights with respect to the company are) these days include provisions that any deviation from a standard NDA and non-compete will have to be agreed to by the Board of Directors. They will be willing to examine things like this for hotshot senior personnel or must-have people, but most CEOs I know are not very interested in telling the board that some cubicle drone wants to modify the standard agreement.
You may not like it, but there is a logic to these things, and it is simple and consistent. In this case it leads to the conclusion that you have very little power. If you want more power, you will have to differentiate yourself in a way that will cause the company to perceive greater advantage in employing you.
I have always modified such agreements. Nobody was shocked - they just passed it up the ladder, and it always came back approved.
Be sure to let them know - don't just hand it back with strikeouts and initials.
I hire programmers now, and I of course have similar stuff in my contracts - not quite the stars and the moon, but I have to cover myself too.
In my current contracts, the programmer:
A. Agrees to disclose any and all outside work.
B. Agrees NOT to accept work that I find to be a conflict.
C. Agrees to pass me full ownership rights to code he writes for me.
D. My claim only extends to code he writes for me.
Oh, and programmers have modified my contract - we were always able to come to an agreement, and I was not upset that someone was using his brain and questioning what he was told. Actually, I am always surprised when people just look it over and sign without comment, question, or change.
After all, I was looking for people with brains and the courage to use them.
After I quit, the company tried this with another employee. She also refused. I don't think either of us would ever intentionally disclose information that would put the company in jeapardy, but it would be legally hazardous to obligate yourself to events in the past. I mean, the other employee was completing her P.Eng, so she might have written something in her journal that violated the later NDA!
Never sign a backward-looking NDA.
-- SYS 64738 --
My first job out of collage :), I was met with a similar "we-own-all" contract. Of course, it wasn't presented until I had been on the job for a few weeks. The contract was dropped off with my employee handbook, hall pass, forehead barcode, etc...
I stalled on signing it. Was bothered by the IT secretary for a while. "Lost" it for a while. Then "misplaced" it for a while. Was given another copy. Stalled. Eventually, the IT secretary forgot about it and was luckily moved on to a different AVP team. Our paths diverged further as our relationship became lost forever in a series of intellectual power re-appropriation plans.
Obviously, this won't work in all environments. But it is amazing how much you can get away with in a big corporate drone environment. My gosh, look at the id10ts surrounding you that they *won't* fire!
This one gang kept wanting me to join cause I'm pretty good with a bo staff.
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
The only time I ever had to sign a very restrictive employment contract (when working in a research lab environment) I saw an opportunity and took a chance: The "OFFICIAL" document was on the mainframe, and printed using a laser printer.
...
...
I grabbed a copy of the file, made the changes I had to have, kept the "look and feel" of the contract document itself almost identical to the original, printed it on a laser printer and had them sign as well as me. They didn't notice the changes, and signed without hesitating or reading.
I still have my copy
I lucked out in a number of ways there, so it is a risk
Best advice: Have a lawyer go over it with an eye to YOUR needs and state law. If he suggests changes, ask for them. Some they might go for, some not. Decide if the compromise is worth it.
(As a backup, it is good to practice the phrases "Would you like fries with that?" and "Paper or Plastic?" until you can say them repeatedly with a smile and without error.)
Tom (Retired EE)
And this explains why employees routinely despise the companies they work for.
... but not because of lack of eagerness. Wallys are innumerable. And the replacement might be another Wally, so there's no guaranteed payoff.)
Well, it's a part of the explanation. When the company has the upper hand, it's merciless. But after you've been hired, it's much more expensive to replace you. So people who feel that they've been mistreated, are less than anxious to jump when someone shouts frog. Most people don't really want to file an wrongful dismissal suit, but some do. So replacing people is expensive. (Yeah, it can be done. I've seen jobs defined out of existence because some honcho was mad at someone
There's a reason for the Dilbert mentality, and Catbert plays as large a part as the PHB.
You may not like it, but there is a logic to these things, and it is simple and consistent. In this case it leads to the conclusion that you have very little power. Since they won't value you for doing your job well, you might as well not...unless you want to. They already value you the same as if you were doing your job poorly, so why bother.
But this isn't the only way! Some places do value good employees, and encourage them. Where good employees are valued, people tend to want to be good employees. And this doesn't mean be 24 hour robots. (See previous paragraph, and extrapolate.) Where good employees are respected, it also starts in HR. A place that won't allow reasonable modifications to an employment contract is a place that you should work at no longer than you must. If they won't allow reasonable modifications, don't take the job unless you are desperate. If you are so desperate you don't dare ask, and it turns out to be a good job, ask then (as soon as you dare) about a contract modification. (If they won't, you'ld better sharpen your resume.)
But don't lie, and don't hide your work. That's a way to get yourself in so much trouble that you don't want to think about it. (You might want to stop working on it for awhile, though, until the contract mess is straightened up.)
I think we've pushed this "anyone can grow up to be president" thing too far.
Years ago, I had - pretty much - the following conversation with my then boss:
Me: I cannot sign this.
Him: Then you are fired.
Me: Then I guess I am fired, since I cannot sign this.
Him: Oh. I'm sure we can work something out.
Me: That's up to you, since I cannot sign this.
Him: Don't worry about it. You do not have to sign this.
That was basically the conversation. It took less than 5 minutes. It was a fairly small company, and it might work much less well in a larger one. But if you've got real skills, don't let the bastards grind you down.
I tend to agree with this approach.
I have worked for a few companies with we-own-you type contracts.
However, I was provided the opportunity to explicitly declare any projects or other IP that I was working with, that I did not wish to give to my employer who shall remain namelesss. (Well, they have a name, but I'm not saying what it is)
The lawyers then consider each entry, and determine whether or not it threatens them in any way. In my case, none of my IP things did.
If they had, I would have discussed and tried to negotiate a special case. However, I wouldn't run screaming to a lawyer and try to rewrite their contract.
my point wasn't that all employers are unreasonable bastards, just that, with current market trends, employees must realize that they have to compromise sometimes, and that compromising doesn't mean saying "my way or the highway"
And larger companies tend to be more set in their ways, and less willing to bend. There are valid exceptions to all of this, as always.
I started with a new firm about 8 months ago. They asked me to sign their standard contract, and I had a read through. Lo, there was such a clause there.
I asked them about it, and explained why I didn't feel happy signing it, and they were suprised that it was even in there in that form! We sat down, worked out a new wording for it (so work done on company time or in direct furtherance of company business is covered, and nothing else), and I signed that. They then made the altered version the new company standard.
So, do talk to your new company about it. Chances are they'll be willing to change it, especially if they're not huge. They may even not realise they've got such a strong clause in there!
This post will enter the public domain 70 years after my death, unless Disney buys another extension.
The last time I was asked to sign one of these (SAIC), there was a section at the bottom where they wanted me to list all on-going concerns that I felt should be an exception to the "we 0nwz joo" principle. It's a lot easier for them to except things that aren't directly related to your new job. Like I listed a game I had designed and programmed, and it was not an issue.
If they've made an offer, and you've gotten to the point of signing a contract, then they want you. Don't assume that if you want a modification of the contract then they'll simply go elsewhere. Propose a modification that protects their side to. They will be most interested in making a distinction between the two domains of the two businesses. If the domains overlap you've got a problem.
When it comes to writing the language, though, they will have a lawyer. You get one too.
As an aside, it may come down to whether the law considers that you were "work for hire" or "professional services". One way to distinguish (in terms of the law) is whether you used company equipment to do your work for them. I always try to use my own computer and software, and only asking them to buy software that others use. I look at it as providing a professional service. In that case, my other pursuits are protected. Only my hours for them are subject to review.
You can't take the sky from me!