Modifying Employment Agreements? 728
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?"
What's more important, a job or your pride? (Score:2, Informative)
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.
Exceptions to Agreements (Score:5, Informative)
They normally don't care (Score:4, Informative)
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)
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)
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.
Re:Kinda OT: Unemployment Benefits (Score:4, Informative)
In Texas unemployment benifits are adjusted if a person is self-employed based, on profits.
If he is just starting it is unlikely he is turning a profit.
It is unlikely that there is any confilict.
-Peter
Just say how you feel (worked for me) (Score:3, Informative)
I've had mixed results (Score:1, Informative)
Been there (Score:5, Informative)
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...
Re:How replaceable are you? (Score:3, Informative)
Re:What's more important, a job or your pride? (Score:3, Informative)
May be a bit underhanded, but... (Score:5, Informative)
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.
Re:3 words: HIRE A LAWYER. (Score:2, Informative)
Assume that I just moved to the area and don't have anyone to ask...
Re:3 words: HIRE A LAWYER. (Score:5, Informative)
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.
IANAL, but... (Score:2, Informative)
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.
Never ever (Score:3, Informative)
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.
Re:3 words: HIRE A LAWYER. (Score:3, Informative)
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 expected in business - they're used to it; you should be too.
Mixed Luck (Score:4, Informative)
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 you're salaried you won't get it. But... (Score:5, Informative)
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.
Re:3 words: HIRE A LAWYER. (Score:4, Informative)
bad url above (Score:5, Informative)
Re:3 words: HIRE A LAWYER. (Score:4, Informative)
Check out SAGE... (Score:3, Informative)
Re:Actively Engaging Employers (Score:3, Informative)
A few years down the line, it'll be thick enough to choke a spammer. When leaving, there's a exit agreement clause that you abide by the NDA. Ask for a copy of the NDA you signed (even if you made a copy at the time). This highlights to them exactly what you signed rather their current wad.
Not enforceable (Score:2, Informative)
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.
Disarm them with a good story (Score:5, Informative)
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!
Re:3 words: HIRE A LAWYER. (Score:4, Informative)
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".
correction to many posters (Score:3, Informative)
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.
Re:May be a bit underhanded, but... (Score:3, Informative)
It doesn't promise a win in a dispute, but it does make those clauses of that contract useless in such a dispute.
Re:If you're salaried you won't get it. But... (Score:5, Informative)
It is worth noting I work for a large state-run university.
I was able to change my contract... (Score:5, Informative)
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?
Re:Hire a Lawyer but You May Not Like the Results (Score:5, Informative)
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)
It's easy... without a lawyer (Score:2, Informative)
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.
Re:Different Employment Agreement (Score:2, Informative)
Section 2870 (a)(1) of the California Labor Code, which states that an employer can take ownership if the product "relate[s] 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."
Re:3 words: HIRE A LAWYER. (Score:4, Informative)
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.
Re:3 other words (Score:3, Informative)
Ah, cynicism. How refreshing.
But it doesn't reflect the reality. You never got your employment agreement modified, but that's because you never tried. I have. And I did. All you have to do is ask.
Re:Don't fill it out. (Score:3, Informative)
There are certain laws in effect regardless of the contract signed or not signed. That depends on the state you work in. Again this would be a reason to consult a lawyer. You may get them to change it, only to find out that it doesn't make any difference and they still own your butt.
Re:3 words: HIRE A LAWYER. (Score:3, Informative)
First off, I was just using that as an example. To answer your question - you simply suggest what you'd like changed: "I'm not comfortable with provision x I'd like it changed to reflect y." They may go for it they may not. After you've figured out what they're willing to do - then you make a decision on whether or not you want the job.
I suppose you could do this without a lawyer, but I'm pragmatic, and weight what I want with what is practica. An employment lawyer is going to give you a pretty good idea what is acceptable in a contemporary employment contract - whether you like it or not is a different issue.
look at SAGE's OSDA (Score:5, Informative)
"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/
Ownership of IP - all parties want all possible IP (Score:2, Informative)
Re:May be a bit underhanded, but... (Score:2, Informative)
Depending on the terms of the contract, you may not want it to be enforceable... but if the same document also sets out your rights to compensation, 401K, medical, dental, etc..., you might want to enforce that down the road.
Re:One approach (Score:3, Informative)
IANAL, I'm just another Slashdotter... Don't depend on anything I say without checking it with counsel first. If you are a lawyer, and I'm wrong, please set me straight.
Here in the US, states are divided into "at-will" and non-"at-will" states. If you work in an "at-will" state, then unless you have a fixed term contract, they can pretty much fire you any time they want. In fact, they have better rights if they fire you for no reason, then if they fire you for cause.
If they fire you for no reason, you can't fight it on the grounds that they were wrong, like they can if they fire you for allegedly screwing up. The only cost to them is that they may not be able to collect back your starting or relocation bonus, if you get one. They may also have to pay a higher unemployment premium in some states. (For example, here in Virginia, unemployment tax can get as high as 9.5% of the first x dollars of payroll each year, where I forget x).
As far as whether or not you've done anything contingent on the NDA that could get you in extra trouble, that depends on when they spring it on you. I've had only one job that gave me the NDA before I'd accepted their offer and started the job. When I've added things to the NDA, they could feel free to fire me -- but they wouldn't have been able to do it for cause, since it wasn't part of the original agreement, and I hadn't violated any terms I'd seen when I accepted the contract. I'd be out a job, they'd be out more in taxes plus my starting bonus.
Just the same, I'd be careful about this. Many employee manuals or policy statements make blanket statements about complying with all other rules and policies, sort of like how MS EULAs say that you can only use them with other licensed software. You may find that you've agreed to the NDA indirectly, by virtue of signing an inoccuous statement on receipt of your employee handbook.
Re:I admire your sense of morality... (Score:3, Informative)
I would say that, most of the time, you're correct about what the company really wants. Most of the time it would be safe to do exactly what you describe. But it's those unusual situations that make for big, scary Slashdot headlines.
Dude, don't become a Slashdot headline (again). Get a lawyer, strike a deal that's fair to you and your potential employer, and then move on.
Re:Get a lawyer! (Score:1, Informative)
I have a once-future brother in law in California who is a union electrition. He can only find work about half the year. The reason? Because of the union he is in, he can't always change areas of the state he works in. You know, because local unions get preference for local jobs. Yeah.. and he has the gall to call other states "right to starve states"..
Its all about how the union is run. Teachers Unions, Airline Unions and shipping (UPS) unions are about the only unions in the US that are useful.
Disclaimer : I've never worked for a union, nor do I wish to work for the type of unions I've seen in the US.
Re:3 words: HIRE A LAWYER. (Score:3, Informative)
Re:3 words: HIRE A LAWYER. (Score:5, Informative)
Lawyer up (Score:3, Informative)
Re:Is 'signing online' binding? (Score:2, Informative)
Bill Clinton signed a law in his second term making electronic signatures of many types fully equivalent to paper signatures. So, yeah, if you click 'I Agree', then you're just as bound to the agreement as if you sent the paper version in.
Re:Is 'signing online' binding? (Score:2, Informative)
Re:4 words: this is about value (Score:2, Informative)
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.
Re:Different Employment Agreement (Score:3, Informative)
On another note, even if they didn't include it at the time of signing, I would have a hard time imagining that a judge would honor a draconian agreement without anything like 2872 added as long as 1)your invention wasn't related to your job and 2)you didn't work in some field relating to national security IANAL so take all this for what it's worth.
Re:3 words: HIRE A LAWYER. (Score:2, Informative)
Your boss is responsible for what you do during the time you are employed and, possibly, selecting you. He is not responsible for your contract.
The reason is that your boss, even if he is the CEO does not know the law and if you are changing a provision of the contract, you might open a can of worms for the company (and close another one for you).
Remember that the US is a country based upon lawsuits.
Of course the real reason is that HR people are control freaks, but I can say this only if it looks like I am joking
Re:3 words: HIRE A LAWYER. (Score:4, Informative)
Wow, it's sad that you perceive that. You really need to learn how to negotiate.
First thing to learn about negotiation: don't make it a confrontation. Instead, frame the conversation so that the two of you are working towards common goals.
I've asked for changes to the past three employment contracts. Ask nicely. Explain what the situation is from your point of view and keep an advocate in the person who's hiring you. That person has already decided they want you and is probably in a fairly accomodating mental state. Don't piss them off and you'll probably get what you need along with most of what you want.
They want to hire you. You want to be hired. They don't want you to take what you learn about their business and form a competitive company. You want to protect your ownership of products and product ideas that you've already worked on. You may also want to protect ownership of new products while you work here (but you don't want to make this case since it implies that some of your creative effort will not be spent on their products, so just try to eliminate wording about them owning everything and this can work out).
From these "common goals", you should be able to initiate a conversation (and changes to the default contract) that makes both parties happy. If you think you need help with changes to the terms and you know a decent lawyer, ask them for the help and expect to pay for an hour's time. Get the full hour of time, though. Ask questions about this situation and about the contract in general. There may be other aspects to the contract that are "iffy" and you may look a lot smarter by bringing them up.
Which leads me to another way to present alterations to the default contract: As improvements. If you can present yourself as fairly sophisticated in similar matters (depends on the job you're interviewing for and how you interviewed), this discussion between you and your boss can be an "us vs. the silly lawyers" which can be a decent way to start a professional relationship with your boss.
Regards,
Ross
P.S. You may even find that this process helps to build interpersonal relationships with HR staff, which is always helpful throughout an employment relationship. HR people have an enormous influence on how you are perceived as they interact so frequently with your boss's boss and even higher up the chain.
Easy to Modify (Score:2, Informative)
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.
Most companies are willing to change (Score:3, Informative)
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!
Re:3 words: HIRE A LAWYER. (Score:3, Informative)
Agreed! A contract is nothing more or less than a formal writeup of an agreement reached between two parties. A lawyer may be called in to make sure that the agreement passes legal muster, and to make sure the contract clearly reflects the intentions of both parties.
A standard employment contract is a lawyer's writeup of an employer's wishlist. Of course, we can't always get what we want, but we certainly won't if we don't ask!
Of course, many lawyers excel at writing one sided documents. That does NOT make them good lawyers for the simple reason that only a fool will sign the other party's one sided contract. As a document meant to foster a quick, easy, and equitabl agreement, a one sided contract is a total failure. Furthermore its a great way fill a formerly friendly negotiation with contention and distrust.
On a related note, 'tricky' contracts with nasty micro fine print on the back of page 23 are also NOT good contracts. They violate the very spirit of what a contract is. That micro fine print does not represent an agreement between parties, it is nothing more than an act of intellectual violence meant to coerce people who don't understand what a contract actually is. It is an act in bad faith. A lawyer that produces such a contract is an offence to the law.
THAT is why a good judge will sometimes throw out provisions of a contract or rule the whole thing null and void. A good judge easily recognizes 'contracts' and 'provisions' that are NOT, in fact, an agreement between two parties, and will then try to figure out what was actually AGREED upon. In such a case, the presumption will be against the party that produced the legal trickery in the guise of a contract. That is a natural enough presumption since the party that produced such a contract is nothing more or less than a huckster in a nice suit.
Some judges don't do any of the above. Those are the judges that themselves don't understand what a contract atually is. Every profession is plagued by a few bad apples that make the whole profession look bad and those judges are them.
Unfortunatly, misunderstanding the nature of contracts and law is quite common. Many businesses don't truly understand that nature at all. Often, they simply trust that their lawyer does understand it, and accept the various standard contracts (boilerplate) their lawyer produces as is. In a real sense they are also victims of their lawyer. It is entirely possible that the 'all your base' employment contract does not reflect the employer's intentions at all.
If it DOES reflect their true intentions, then they are simply after something for nothing. They are the orperate version of the three card monty hustler and they want to hire you as their shill. If they make their living conning people, what are the odds of them treating you any differently? Desperation may drive the decision to work for them, but do keep it in mind, the bad economy can't last forever.
For all of the above reasons, I prefer to work for small to mid sized employers. In every job I have taken, there has been genuine negotiation in the employment contract, and in the cases where the employment contract was written, it has reflected those good faith negotiations. In other cases (with small companies, generally sole proprietorships), a hand shake agreement was good enough. Since I live up to my agreements, and have been pretty good at finding employers that do the same, I haven't had a problem.
Any honest and clueful employer WILL negotiate on the employment contract without making a big fuss about it as long as the potential employee approaches it politely in the spirit of coming to an agreement.