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Modifying Employment Agreements? 728

Posted by Cliff
from the adjusting-the-small-print dept.
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?"
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Modifying Employment Agreements?

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  • by frenetic3 (166950) * <houston&alum,mit,edu> on Monday February 09, 2004 @03:33PM (#8228522) Homepage Journal
    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

    • by greysky (136732) on Monday February 09, 2004 @03:40PM (#8228633)
      I would be hesitant to hire a lawyer unless we're talking about a top-level job (IE: CTO, Director of Technology, etc). If you're going in for a developer position and bring a lawyer in, then they're either going to go on to the next candidate or else bring their lawyer(s) in to the mix.
      • by dtrent (448055) on Monday February 09, 2004 @03:52PM (#8228809)
        You don't bring the lawyer to the negotiating table with you, or even tell the new employer you have a lawyer. All you do is have a lawyer review the contracts and give you advice, such as "the no invention clause sucks, but that's the norm at this point in time."

        The point is, when an employer writes a contract (or when anyone writes a contract, for that matter) they ask for the world even though they're only expecting the moon.
      • by twenex (139462) on Monday February 09, 2004 @03:52PM (#8228814)
        Silly rabbit, you don't actually introduce them to your lawyer, you just have him or her check over the agreement and modify it to your intended result.
      • by wdtj (654004) on Monday February 09, 2004 @03:59PM (#8228921)
        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.
        • by Pike10 (413427) on Monday February 09, 2004 @06:21PM (#8231131)
          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.
      • A lawyer isn't going to try and bring the company CEO in front of a international tribunal.

        Most likely he will listen to you, read the contract, suggest a wording change to the contract and send it back to you.

        I shouldn't be anymore than visiting his office.
      • by cubicledrone (681598) on Monday February 09, 2004 @04:10PM (#8229068)
        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?
      • by i_r_sensitive (697893) on Monday February 09, 2004 @05:24PM (#8230211)
        I don't know about that, if I'm a developer and my lifeblood is writing code, I think it is worth the cost to get my NDA clear and livable with what code is theirs and what is mine.

        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.

    • by Lumpy (12016) on Monday February 09, 2004 @03:41PM (#8228656) Homepage
      Amen,

      have had modified EVERY employment contract I have ever seen.

      these things are changeable and you do NOT want to work there if they are not.

      always ALWAYS have the clause stricken that pertains to your own time. and or have a clause added that clearly states that your time is YOUR TIME. same as any ideas, inventions, lottery winnings done on your own time with your own resources.

      It will cost you from $60.00 to $240.00 to get this done by a lawyer.

      • by werdy (708240) on Monday February 09, 2004 @04:00PM (#8228937)
        I have consistenyl refused to sign that type of agreement - and it has never afected my employment. Most companies throw that in, but very few will refuse you employment if you don't agree. Get a lawyer, get the terms changed. Most of the employers I've had actually gave me the first few weeks of the job to have it reviewed and work out any changes.
      • by ajagci (737734) on Monday February 09, 2004 @04:29PM (#8229398)
        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 ;-)
      • by Tassach (137772) on Monday February 09, 2004 @04:53PM (#8229778)
        I've always done this, and never had a lawyer. Simply cross out the offending clauses, initial them, and have the HR director initial & sign the changes. If you are just striking clauses and not adding anything, there's little need for a lawyer.

        If you're going to start adding new clauses, then it might be worth hiring a lawyer, depending on how closely related your outside projects are to your employer's line of business and how valuable you think your creations might be. You really only need to hire a lawyer once to construct your I-own-anything-I-create-outside-of-work clause, and plug it in wherever it's needed. As the parent said, if they aren't willing to agree to this, then that should be a huge red flag telling you RUN for the nearest exit.

    • by LostCluster (625375) * on Monday February 09, 2004 @03:43PM (#8228686)
      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.
      • by Sneftel (15416) on Monday February 09, 2004 @04:16PM (#8229154)
        Really? I once had this guy working for me who was such a friggin' tool, he went on this weeklong crusade to find a booklet of rules to follow. Luckily, he left on his own, so I didn't have to can his ass.
    • by vwpau227 (462957) on Monday February 09, 2004 @03:45PM (#8228725) Homepage
      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.

      • Yeah. Expect whoever's hiring you to perceive any changes to legal documents as threats at first, just as you would modifications to some legalese in your contract by your employer to be some attempt at them fucking you over.

        You're right -- your lawyer will find a number of other things that need to be changed as well (my lawyer found 5-10 little nitpicky things) and the process of getting these things changed is a pain in the ass, and can strain a relationship. It also takes FOREVER. Unfortunately, it could also result in you not getting hired.

        However, there is a good foundation of trust that results from both sides fully understanding an employment contract -- and you can rest easy knowing there are no 'gotchas' or time bombs lurking in the contract that can fuck you over in case things turn sour. I would not work anywhere without that foundation of mutual trust, but the parent is correct in that at some point you have to pick your battles or risk losing the job.

        I just finished a five month-long contract negotiation for a fairly high-level architect position at a startup, and it was painful but everyone is now happy -- just keep your cool (don't get pissed off/frustrated), pick your battles, and be willing to compromise.

        -fren
        • by Anonymous Brave Guy (457657) on Monday February 09, 2004 @04:35PM (#8229512)
          Expect whoever's hiring you to perceive any changes to legal documents as threats at first, just as you would modifications to some legalese in your contract by your employer to be some attempt at them fucking you over.

          I don't see why it should be perceived as a threat. When my current employers made the job offer, I was sent a nice letter and a summary of the Ts&Cs (salary, holiday entitlement, etc.) and told I'd be expected to sign a full contract when I arrived.

          Alarm bells rang, so I replied saying I was definitely interested but would like to see the full contract first (to check for exactly the type of "We Own Everything" clause mentioned here, coincidentally). The following evening, the guy who runs about half the company turned up on my doorstep about 7pm, handed me a copy of their standard contract, and basically said, "Got your letter, no problem, it's not unusual for new starters with experience elsewhere to ask."

          Incidentally, my contract does have a clause that explicitly indicates the company having no claim over anything I do off company time and without company equipment. In the OP's position, I would immediately ask to have one inserted in place of the current wording, mentioning my situation regarding the existing other business if necessary. If they won't acknowledge your concern and insert the clause pretty much immediately, well, now you know what kind of employer they are and that you don't want to work for them. :o)

      • I'm still on my first contract job, but here's a couple of thoughts:

        So your lawyer notices a bunch of things that would be convenient to have in your contract. Don't jump at all of them. Look at them, and decide your priorities. Go back to your new employer with a few versions; a minimalist (My time is my time), a nice-to-have (paid holidays), and a luxury contract (Paid vacations.)

        Offer a compromise... Is double-on-overtime worth a few thousand less per year (on average)? Are paid vacations worth a c
    • 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 sighni
    • by Teppy (105859) *
      "Hire a Lawyer" has become a kneejerk reaction on Slashdot. I'd suggest, instead, to understand what you're being asked to sign, and then if a minor modification would fix it, mark up the contract, initial it, and ask them to do the same.

      Contract law is much closer to the sort of logic that every programmer is familiar with, than it is to some sort of extraterrestrial language.

      I've done this to plenty of contracts, both as employer and employee/contractor, and have never lost a job because of it. It's exp
      • by frenetic3 (166950) * <houston&alum,mit,edu> on Monday February 09, 2004 @04:00PM (#8228926) Homepage Journal
        Ugh... not good advice. For *reading* a contract, yeah, common sense will yield a good *understanding*. For *writing* amendments, the devil is in the details unless the modification is truly trivial. (Furthermore, you can be sure their legal team will reject any 'homebrew' modifications.)

        American AC in Paris had a great quote below -- "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."

        -fren
      • by homebru (57152) on Monday February 09, 2004 @04:05PM (#8229011)

        You may not lose the job, but, if you don't notice the funny wording in the next to the last paragraph on page sixteen, you may sign away rights that you hadn't thought about.

        A programmer trying to be his own contract lawyer makes as much sense as a lawyer trying to write and support a custom contact manager or billing system for his firm.

      • by magarity (164372) on Monday February 09, 2004 @04:09PM (#8229053)
        "Hire a Lawyer" has become a kneejerk reaction on Slashdot

        In case you hadn't noticed, "sue them straight to the poorhouse" has become a kneejerk reaction in business in general. Since this person's personal business is on the line, getting professional advice is not just good advice; it's the best advice.
    • Sound advice... (Score:5, Insightful)

      by JaredOfEuropa (526365) on Monday February 09, 2004 @03:54PM (#8228842) Journal
      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.
    • by IPFreely (47576) <mark@mwiley.org> on Monday February 09, 2004 @04:21PM (#8229256) Homepage Journal
      I went through a very similar situation about 6 years ago. A small privately owned company handed me an employment contract with several strange clauses in it. The ony I objected to was that any work I do on or off company time could be billed by the company. Since I do volunteer work for various churches, I didn't want them to jump in and bill for my time.

      I basicly went to the owner and said "I can't sign this." and explained why. The funny thing was he hadn't even read it himself. He got a boilerplate contract from his lawyer and just passed it on. So he handed it to me and said "OK, rewrite it." I did, on my own. I only weakened the clauses I didn't like and passed it back. If I had really torn it apart, they probably wouldn't have liked it. I did eventually sign my new version, and it worked out fairly well. They didn't even hold me to some of the conditions in it when I left. It was all pretty friendly.

      Measure the employer as much as the contract. It's not always possible to gauge them if you don't know them well, but if they work with you in the beginning, it can tell you a lot about how they will react in the end.

    • by jmv (93421) on Monday February 09, 2004 @04:26PM (#8229357) Homepage
      Actually, there's a step before "calling the lawyer" or doing it yourself. You can just ask the clause to be removed or made less restrictive. That way, their lawyer can choose the wording, while you still get what you want. Of course, that only applies when the modifications are minor. In my case, I had to sign an NDA for my master project. I only asked that a clause saying "anything I develop" be changed to "anything I develop that's related to my master". They got the change it themselves and it worked.

      The only thing I'd like to add also is to *NEVER* trust an employer (or anyone else) that says "sure it's in the contract, but we never really apply it".
  • Get a lawyer! (Score:5, Insightful)

    by American AC in Paris (230456) * on Monday February 09, 2004 @03:34PM (#8228533) Homepage
    You're going to get a lot of tips and suggestions in this thread, many of which will be quite good.

    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.

    • Re:Get a lawyer! (Score:5, Interesting)

      by Draknor (745036) on Monday February 09, 2004 @03:39PM (#8228628) Homepage

      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.

    • Re:Get a lawyer! (Score:3, Insightful)

      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.

      Well said. you'd have my mod points if I had'em

  • by Alan Livingston (209463) on Monday February 09, 2004 @03:34PM (#8228539)
    You didn't cash on unemployment checks while you started this business, did you?
  • by EriDay (679359) on Monday February 09, 2004 @03:35PM (#8228549)
    Sounds like they're going to have an opening.
  • Good luck (Score:3, Insightful)

    by slash-tard (689130) on Monday February 09, 2004 @03:36PM (#8228571)
    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.
  • by LostCluster (625375) * on Monday February 09, 2004 @03:36PM (#8228575)
    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...
  • by Boing (111813) on Monday February 09, 2004 @03:37PM (#8228577)
    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.
    • by Waffle Iron (339739) on Monday February 09, 2004 @04:28PM (#8229390)
      Most companies expect to receive these creations. In fact, the practice is so common that you usually see elaborate fixtures for collecting them in every office. Every employer I've had has accepted these submissions, but I honestly don't know what they do with them after they've been dropped off in the fixtures. I suspect that they really don't want to deal with this stuff and it just gets shipped offsite somewhere.
  • by dsojourner (695863) <`dsojourner' `at' `yahoo.com'> on Monday February 09, 2004 @03:37PM (#8228587)
    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
  • by buus (698205) on Monday February 09, 2004 @03:37PM (#8228591)
    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.
  • by greysky (136732) on Monday February 09, 2004 @03:37PM (#8228593)
    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.
  • by The_Rippa (181699) * on Monday February 09, 2004 @03:38PM (#8228597)
    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?
    • But this isn't the NDA portion of the contract he's objecting to. He doesn't want the right to talk about the company's IP, what he wants is to make sure the line between his IP and the company's IP remains solid, which is something very reasonable to ask for.
  • by OldAndSlow (528779) on Monday February 09, 2004 @03:38PM (#8228601)
    Last time I changed jobs, I went to work for a company headquartered in CA. They have a similar "all your ideas belong to us" terms of employment agreement. They also say that the laws of CA govern the agreement, and the CA courts have held that only work related inventions can be claimed by the employer.

    IANAL, etc. The point is that you need a lawyer. This stuff varies by state.

  • by signe (64498) on Monday February 09, 2004 @03:38PM (#8228602) Homepage
    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
  • by UVABlows (183953) on Monday February 09, 2004 @03:38PM (#8228608)
    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.
  • I Just said No (Score:5, Informative)

    by wsxyz (543068) on Monday February 09, 2004 @03:39PM (#8228613)
    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.
  • just my case (Score:4, Informative)

    by Tellarin (444097) on Monday February 09, 2004 @03:39PM (#8228623) Homepage Journal
    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.
  • One approach (Score:5, Interesting)

    by VAXcat (674775) on Monday February 09, 2004 @03:39PM (#8228629)
    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...
    • Re:One approach (Score:5, Insightful)

      by Abcd1234 (188840) on Monday February 09, 2004 @03:49PM (#8228780) Homepage
      Of course, in that case, they could lawfully fire him on the spot with no compensation since the employment agreement was almost definitely contingent on his signing of the NDA. Sounds like a risky proposition to me...
    • Re:One approach (Score:3, Insightful)

      by TubeSteak (669689)
      You might get away with it if you haven't received your first paycheck and/or haven't seen any trade secrets, IANAL, but a judge would say that you accepted the contract by accepting the job.
    • Re:One approach (Score:5, Interesting)

      by pla (258480) on Monday February 09, 2004 @04:47PM (#8229682) Journal
      They apparently didn't check to see if he had, because they never said anything about it.

      Somewhat less bold, though more obvious if anyone actually looks...

      My previous employer had a rather humorous (in an offensive way) non-compete agreement. I "signed" it with "see back for exceptions", and then gave a point-by-point refusal to comply with all but a handful of their terms, including my reason (for example, one point stated that none of my family or friends could make use of the services this company provided - Simple refutation, "I accept no reponsibility whatsoever for the actions of anyone other than myself, including but not limited to, family, friends, and assorted acquaintances").

      I presume no one ever even looked at it, they just stuck it in my file, but it made me feel better, anyway.


      In an amusing twist, I couldn't find my standard disclaimer to this agreement (we had to re-sign it yearly) when it came time for my exit interview (I had already cleaned all my personal files off my PC, and probably deleted that as well by accident). So I mentioned that I always attached a statement, and could they let me see my form from last year so I could copy it - They couldn't find any previous version for me to refer to. So instead of "see back for exceptions", I signed it "See last year's form for exceptions". Peeved the HR chickie doing my exit interview, but she had to agree with me completely when I pointed out that, if they didn't have it on file in the first place, they couldn't very well enforce it.
  • by mnmlst (599134) on Monday February 09, 2004 @03:40PM (#8228637) Homepage Journal

    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...

  • by sterno (16320) on Monday February 09, 2004 @03:41PM (#8228648) Homepage
    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.
  • by Bowie J. Poag (16898) on Monday February 09, 2004 @03:41PM (#8228650) Homepage


    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,
  • by GweeDo (127172) on Monday February 09, 2004 @03:41PM (#8228659) Homepage
    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 :)
  • Been there (Score:5, Informative)

    by Rorschach1 (174480) on Monday February 09, 2004 @03:43PM (#8228681) Homepage
    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...
  • by cmowire (254489) on Monday February 09, 2004 @03:45PM (#8228723) Homepage
    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. ;)
  • by Cherveny (647444) on Monday February 09, 2004 @03:49PM (#8228779) Homepage
    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.

  • Never ever (Score:3, Informative)

    by SirSlud (67381) on Monday February 09, 2004 @03:53PM (#8228833) Homepage
    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.
  • by i_want_you_to_throw_ (559379) * on Monday February 09, 2004 @03:54PM (#8228844) Homepage Journal
    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.
  • Mixed Luck (Score:4, Informative)

    by syntap (242090) on Monday February 09, 2004 @03:55PM (#8228861)
    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.

    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/ncClaus es .asp?ident=rsrc3

    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.
  • by Ungrounded Lightning (62228) on Monday February 09, 2004 @03:57PM (#8228888) Journal
    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.
  • by GMontag (42283) * <gmontag@noSPAm.guymontag.com> on Monday February 09, 2004 @03:57PM (#8228892) Homepage Journal
    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.
  • by Headius (5562) on Monday February 09, 2004 @04:03PM (#8228979) Homepage Journal
    ..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.
  • Check out SAGE... (Score:3, Informative)

    by `Sean (15328) * <sean@ubuntu.com> on Monday February 09, 2004 @04:05PM (#8229003) Homepage Journal
    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/ [sage-au.org.au]
  • by Deagol (323173) on Monday February 09, 2004 @04:09PM (#8229056) Homepage
    Rather than modifying the existing contract, wouldn't it be easier just have your own boilerplate addendum that specifically suspercedes the standard contract with your own requirements?

    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.

  • by tmoertel (38456) on Monday February 09, 2004 @04:14PM (#8229138) Homepage Journal
    If you, personally, object to terms of a new employer's employment agreement -- even if you're in the right -- you'll have a difficult time persuading your employer to change the terms without making yourself look bad. After all, they'll argue that the terms are "standard" and that you're being unreasonable. In order to win your point, you'll have be aggressive, possibly even adversarial, and that could damage your reputation with your new employer.

    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:

    Employer: Before we get started, there a few documents that we'll need you to sign. Nothing unusual. This kind of thing is standard for software work. You understand.

    You: Certainly. [Takes documents.] Gee, there sure is a lot of legalese here. You know what? I'm just going to have my attorney look these over for me. I never was much for contracts. I'm sure he'll be fine with them. After all, there's nothing unusual in here, and he'll probably give me the OK to sign them in short order.

    Then when you return to discuss the we-own-all-your-IP clause, you're not the bad guy:

    You: Good news! My attorney thought the contract was fine, with the exception of one small part of the Intellectual Property section. He said that we should be explicit about where the line drawn is between the work that the Company is paying me to do and hence owns, and everything else. He said that this change was no big deal, and even provided me with the language to use. He said it was pretty much standard in software agreements.

    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.

  • by dirk (87083) <dirk@one.net> on Monday February 09, 2004 @04:19PM (#8229191) Homepage
    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?
  • by Doco (53938) <Dan@NoSPAm.oelke.com> on Monday February 09, 2004 @04:19PM (#8229203)
    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!
  • by umofomia (639418) on Monday February 09, 2004 @04:22PM (#8229283) Journal
    ...is that companies generally spend a lot of money just in the recruiting process just to find you (depending on the size of the company, it may be upwards of several tens of thousands of dollars). When you get the offer, as long as your request is reasonable, they're not going to throw it away and spend another chunk of money just to find and hire someone else.

    They'll work with you to settle the disagreement in wording until both sides are happy. This happens more often than people think.

  • by jjohnson (62583) on Monday February 09, 2004 @04:24PM (#8229310) Homepage
    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.
  • by Satan's Librarian (581495) * <mike@codevis.com> on Monday February 09, 2004 @04:33PM (#8229463) Homepage
    Last time I went to the negotiating table when starting a new job, I fought for (and won) a number of changes to the IP agreements - but I had a strong position for negotiating as I was already consulting on the project and had proven my experience and value to them.

    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 [ca.gov].

    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?

  • look at SAGE's OSDA (Score:5, Informative)

    by sir_cello (634395) on Monday February 09, 2004 @05:13PM (#8230055)

    "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/

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