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?"
Kinda OT: Unemployment Benefits (Score:4, Interesting)
Different Employment Agreement (Score:4, Interesting)
But at any rate, there are companies which will agree to what you wish to ask.
dsojourner
Don't fill it out. (Score:2, Interesting)
These terms fail in California (Score:4, Interesting)
IANAL, etc. The point is that you need a lawyer. This stuff varies by state.
Desperation Level (Score:2, Interesting)
Re:Get a lawyer! (Score:5, Interesting)
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.
One approach (Score:5, Interesting)
Might be a problem... (Score:4, Interesting)
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.
Re:Don't work in IT (Score:1, Interesting)
A couple of things... (Score:1, Interesting)
Now, to make this go in another direction:
1. I wonder how legal these sort of contracts actually are. I can't honestly believe that a court would allow a company to owns its employees minds in their spare time. I have heard horror stories about employees being asked to turn over their own projects that have nothing to do with their works business just because their employer thinks they might be able to make a buck on their spare-time work. Has anyone actually challenged these in court?
2. What about discussing the legal ramifications of developing for Open Source software while having signed one of these contracts. Could the employeer claim that project in some fashion?
3. This is exactly why I hate corporate america....(rant)
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
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.
What worked for me... (Score:3, Interesting)
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.
Hire a Lawyer but You May Not Like the Results (Score:5, Interesting)
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.
Re:What's more important, a job or your pride? (Score:4, Interesting)
I think you somehow missed the point here. He is asking if it is possible to add a suplement to a NEW contract, so no sending out resumes, no "keeping" the job,...
As for me, here in Belgium, I have a company together with some other chaps. My current work is in the line of what the company is doing. I discussed this with my employer, and no problems were found, as long as I keep both of them really separate. No logging in to servers, not answering phones,... Fair deal.
I always argumented this as "you asked for people who dare to take a risk, want to work hard and have some insight into business and running a business". If you don't score with that, the HR-guy is afraid that you might take his job.
What you do on your time is your business (Score:2, Interesting)
If a company wants to own your personal time efforts, then they should be willing to pay you for your personal time at the same rate as your regular work hours.
To give in to a demand that your personal time creations are owned by the company reduces you to nothing more than a slave, with no property rights whatsoever. Western society escaped that viewpoint a long time ago, no matter what a work-contract may have you believe.
Actively Engaging Employers (Score:5, Interesting)
Some companies appreciate your taking the time to negotiate and read through all parts of the employment agreement. It shows that you are actively engaged in the process.
I've actually had companies make major changes to their non-compete and non-disclosure agreements after my review of the forms. It probably depends on the firm and the lifecycle of the firm. I've worked in a few companies where the corporate lawyer was thrilled to sit down with an employee and talk seriously about the contract.
Conversely, if the hr clerk, or whoever you talk to, feel they have no control, they will resent what you are doing.
I did this. (Score:1, Interesting)
An offer of employment had been made and I was given the contract to sign. I explained that I did sometimes undertake other work in my own time and that this was non-negotiable. I provided them with a written letter stating this with the proviso that I would not accept any work from a client of theirs or one with which they had entered negotiations, and asked them to give me a formal letter in reply agreeing to this. Which I kept.
This saved them having to arrange a special contract and it was no loss to them. No issue ever arose but it would have served fine in a UK court as the contract allowed them to give permission for outside work.
This was a fairly small company however, without a massively beauracratical HR department. Still, it should not be a problem unless your company chooses to make it one.
I believe the US is a little more lawyer dependent than the UK however (so far).
If they don't accept it, keep pushing and keep an eye out for another job.
Re:They normally don't care (Score:1, Interesting)
A smart fellow here invented somethign that was not even work related and was impossible to be designed on our resources. they tried to take ownership, he asked to see a copy of the contract that states ownership and there was NO signature or date by him.
he used a disappearing ink pen to sign all the company's forms that were "questionable" the ink was there long enough to satisfy the HR lady, and she filed them away...
clever guy, he quit right after that wild mess...
Talk to them Talk to a Lawyer (Score:3, Interesting)
I would recomend simply not sighning that agreement just yet and returning all the other paperwork signed for them. Then going though it with your manager.
The other thing is you could look into incorperating a personal software company to protect what you have allready created.
I will joing the rest of the chorus
Get A Lawyer!
A twist to "Hire a Lawyer" (Score:3, Interesting)
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.
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
Re:What's more important, a job or your pride? (Score:2, Interesting)
By doing this, you're:
Or you could just say "You know, this is so fucking illegal, have you had a lawyer review this?"
Don't sign. Or sign with "Charie Tuna". Or sign "Terms Rejected". In my experience, nobody looks at the signatures anyway. I've always signed for registered mail as "Charlie Tuna".
Re:A couple of things... (Score:3, Interesting)
This is mostly a state matter, and varies from state to state. Most states have laws that do not allow this type of agreement, but not all
Courts generally will not uphold any agreement that something is owned that the company did not pay for. However courts [in some states] may agree your contribution to some project is company property if the company pays you extra for it, even if you didn't intend it that way. You might not like the payment though. Its been challanges in courts a few times, and it comes down to state laws, so depending on where you live you might or might not win.
Generally it comes down to don't do something that will compete with your company (ie don't write for CVS if you work for a version control company), and the company does not own your time. This is mostly fair, but only after the lawyers fight it out.
Fair is Fair (Score:1, Interesting)
I'm not sure why you would ever expect a company to allow you to develop possibly competing products, especially when you are doing R&D on their time, honing your skills on their time, and enjoying ALL of the perks of their time.
Your employer, believe it or not, has gone out on a line in many cases to provide you with a fair amount of amenities (health care, a paycheck, security, work atmosphere, etc.). The business owner has no doubt laid down his/her own life/success/money to start the business, assuming all the risk.
You can't assume a baker to figure out a recipe, build a restaurant, market the product and then allow someone to start a restaurant on their own, borrowing many of the intellectual-elbow-grease-earned property of his/her business.
Either do as they did and get with the program (in business) with much risk but high reward, or lesson your risk and do the J-O-B!
I'm a business owner...can you tell????
Re:3 words: HIRE A LAWYER. (Score:1, Interesting)
Keep in mind that that your prospective boss is usually just trying to keep his head down and do his job, just like you are, and the last thing he'll want to do is sit around and have meetings with HR and Legal and His Boss's Boss's Boss about your employment contract.
I would just write "Except for unrelated outside projects" on the contract and keep it at that. It might not be 100% airtight, but if they feel like suing you or firing you, they'll find a way to do it no matter what.
How about a contract addendum? (Score:4, Interesting)
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.
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
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?
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
At first I thought it was simply an unintentional mistake...but when asked about it to my possible future boss, he flatly said it "Oh no, that's correct, basically if you were to earn money from anything you work on outside office hours, we feel we contributed and therefore its our product...its happened before."
At the time (this was 95-96) I was desperate..but not desperate enough to sign that.
Here's a shocking:idea: outside gigs usual help. (Score:1, Interesting)
Now, if it's DIRECT competition, then I understand, but if you're just a code monkey slinging code for a non-computer company and want to do things on your own, then then is a bonus for that company.
The more you do, the better you get at it. If I simply relied on learning new tech or programmer during my day job, I wouldn't know nearly as much as I know now by also programming outside of company time. Any experience gained outside of work time benifits the company, not hurt them.
Hell, I wish they'd make it manditory for people to do outside projects every once in a while. All these crufts sitting in there cubes thinking the company should send them to training bugs me sometimes. For the love of pete, if you want to learn something new (html, web, perl,
Re:May be a bit underhanded, but... (Score:2, Interesting)
They believed that the cross-out with initialing would be enough to indicate my refusal to agree to a provision.
Re:A couple of things... (Score:2, Interesting)
I don't know whether it's directly applicable to the corporate world because the case was at a university, but some years back there was a case where someone employed as a researcher at the University of South Florida developed something completely unrelated to his job, and did so on his own time, but it ended up as a criminal theft case when he tried to patent what he did. USF said that they owned his invention because it was in the same general field (chemistry, I think), as what he was doing for them, even though it had nothing to do with the research he was hired to do.
A lot depends on the impetus for the contracts (Score:1, Interesting)
Ask a lawyer -- for the UN-obvious reason (Score:5, Interesting)
One of the most valuable services that lawyers provide, in addition to sound legal advice, is shielding you from being the bad guy. Instead of having to argue with your new employer, you can be the nice guy, while deferring to your lawyer's judgment:
Then when you return to discuss the we-own-all-your-IP clause, you're not the bad guy: See? Now you're a great position. You've been nothing but reasonable. If the company doesn't want to make the change, they're the bad guys. They will look like they want to lay claim to all of your work while paying for just a portion of it. You'll be in a great position to argue for your change or, better yet, have your attorney do it for you.Attorneys are essential for this kind of thing. Use them for their legal advice, and use them to keep yourself above the fray.
If you have problems, you don't want to work there (Score:3, Interesting)
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?
Re:3 words: HIRE A LAWYER. (Score:1, Interesting)
I did not raise it with my manageramd/or agent because (1) they is not really interested in my out-of-work activities (the clause really is a standard form), (2) raising it potentially causes complications. So far I've never been challenged.
There is some legal precedent for this being effective in Engligh Law (so called battle-of-forms) See Butler Machine Tool Co v Ex-Cell-o Corp [1974] WLR 401. The person who gets "the last shot in" wins.
Please note that I am a law student, not a lawyer. I make no accertions about it correctness. You are advised not to rely in any way on my advice, and consult a proper lawyer. I take no responsibility for any damage arising from it's use. One of my lecturers says that you would have to be an idiot to rely on the advice of a law student (and why I'm anonymous)
Re:3 words: HIRE A LAWYER. (Score:4, Interesting)
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.
I hope not. (Score:3, Interesting)
If I hire you and tell you to do something and do it "this" way you had best do it and do it the way I told you to. But if you think your way is better there is nothing wrong with pointing that out on the side. Everywhere I've worked, in all ranges of positions, this kind of input is appreciated.
To publicly challenge the plan is a mistake though. This is not seen as constructive. It is seen as disruptive. Bring up the ideas in private with those who made the decision in the first place. If you're right you may get praise. If you're wrong, they'll likely point out why. Either way, you're better for it.
If that gets your labeled as a boat-rocker then go find another job ASAP. Your talent is not being appreciated. Contrary to popular belief, there are jobs out there.
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
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
This is what has worked for me, twice now (Score:2, Interesting)
AMENDMENT TO EMPLOYMENT CONTRACT
Exceptions to Paragraph 3, Subsection (x): Employer acknowledges and was advised prior to employment that Employee is employed as a freelance Web Developer both directly and through his business, Insert Name, Inc. Employer further acknowledges that in the course of that employment and consultation, employee will invent and devise solutions to problems the could be directly or indirectly beneficial to Employer, but Employer will have no right to such inventions or solutions developed for other clients belonging to Employee or Insert Name, Inc.
Secondly, Employer acknowledges that Employee, through his prior work experience, possesses unique solutions and programming developed on his own and with other employers, and it is this unique knowledge that ultimately lead to employment at Hiring Company, Inc. Given the number of programs and solutions developed in the past, it would be impossible and an undue burden on Employee to disclose every item listed in Section 5, Past Inventions And Discoveries. Employee can agree to not breach any previous non-disclosure contracts with previous employers so as not to endanger Hiring Company, Inc. This shall constitute an exception to Section 5 of the employment contract.
Employer agrees to strike the word "indirectly" from Section 6 "Non-Competition Agreement", and Section 7, "Non-Solicitation Agreement, and further acknowledges that Employee shall continue to own and operate his consulting agreements and business, Insert Name, Inc., and such business does not constitute competition or conflict of interest.
Worked for me (Score:3, Interesting)
I also write books, and my employer has been happy to disclaim ownership in the material as long as it doesn't enter into their business space.
It varies by employer of course. My previous employer took 4 months to make these kinds of decisions; my current one turns them around in a day.
Re:3 words: HIRE A LAWYER. (Score:3, Interesting)
Re:3 words: HIRE A LAWYER. (Score:3, Interesting)
Do you scratch out on their copy and write it in by hand? Do you get your lawyer to reproduce the document, and take that back in? Do you get the company somehow to make the word changes?
I'm curious what you do after you decide you want the 'all inventions clause' out...
Re:One approach (Score:5, Interesting)
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.
Re:3 words: HIRE A LAWYER. (Score:1, Interesting)
non compete = no other commercial i.e. no moonlighting even if it's a hobby run under a DBA so you can cover expenses.
Here's what I did (Score:3, Interesting)
Initially I hoped they would forget about it, but they didn't. I did speak with my lawyer, and he said that it would not be a good idea to forget about it. The company could argue that I agreed with it by default.
The good thing about the stall though is that you have a little more negotiation room. You've proven yourself, and they probably don't want to get rid of you anymore.
My lawyer said that if he'd been on the Companies side, he would not buckle. But since he was on my side, he said that I should certainly negotiate on the sections that I did not like.
Preferably you get those sections out entirely, because once it comes down to wording it gets very tricky and you should really leave it up to a lawyer.
When talking to the lawyer, I came up with a solution pertaining inventions:
My company wanted me to list all prior inventions that I'd made. Although I didn't use these exact words, I said that was insane, and none of their business. So I asked my lawyer if I could file these inventions with him, so they'd be registered at a certain date. That way I can always prove that I invented it before starting at the company and they don't have to know what it is.
Obviously it would be better to have this list filed before you start working.
Regarding stuff you invent while working for the company, if it is related to their business, I think it's hard to argue that you should own it.
In all honesty, even though you do it on your own time, own equipment etc etc, your still going to use knowledge/ideas that you came up with during work hours.
More likely would be where you'd come up with an idea during the day time, but since it's all in your head, who's going to know, right? Then at night you develop it. You can see how this could be harmful for the company. Especially with programmers, they are going to expect a certain level of creativeness. That's why they have to protect against conflict of interest. I personally had no problem signing that part of the deal.
Sorry this has become a little bit of a rant...
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
He was installing a backup system for some big company, and didn't realize that the backup system was incompatible with their database. The result was he destroyed their entire database. Very bad situation. They were threatening to sue him.
He hadn't billed them, or presented any contract to them at this point. This company had actually purchased their PC's and some other services from his employer, so he let his freelance consulting services fall under services provided by his employer. His logic was that he would rather loose his job then pay the legal fees or damages. Since he had a similar (we own you) agreement with his employer that was the way it technically should have been.
Turns out the employer had a no-fault clause in a service contract this company signed, so they couldn't sue anyone. The whole situation just kind of went away. As far as I know his employer didn?t even reprimand him for it. Not sure how he worked it out, but he kept his job and got promoted a few times after.
My experiences on this front (Score:1, Interesting)
Is 'signing online' binding? (Score:3, Interesting)
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
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.
I made edits to the EC myself (Score:1, Interesting)
For one company, they were silly enough to give me a Word document that I edited myself, then printed it and signed it before turning it over to the very busy HR manager who signed it w/o even looking.
Another time, I simply crossed out offending passages and initialed them, then submitted the edited EC to my manager. He looked at it a little nervously, and said that HR would have to review the changes and see if they were acceptable. Nothing ever happened.
The companies assume you will not read these things; I assume they don't bother to look at what you have edited. So far, I win. And for you trolls that assume that questioning the EC means you won't get the job; that hasn't happened to me. I probably wouldn't want to work for a company that wasn't willing to work with me. Or I would have to accept the slavish nature of such an employer.
Some of the things I objected to:
1) Assignment of all patents and copyrights. I edit this to be created in the course of my employment, not to infringe on any prior work I have performed in the areas of (name the areas - in my case it was data compression and independently created software programs. I was performing integration engineering for the employer.)
2)
3)
4) Add a statement that if there is a conflict, the intent of the employee signing the document must be considered in any decision to enforce the relveant sections. Don't let them throw out your edits because they aren't in legalese. Better yet, don't give the employer a reason to pull up the EC.
5) Last and not least!! If you are pressured to sign, place the words "Under Duress" next to your signature and initial it. The courts will not hold you to a contract signed under duress, and most managers don't understnad the legal significance of such an innocent looking statement.
--
Your mother was a toaster; Mine was too.
Meh (Score:3, Interesting)
Except this isn't just a niggle, its a major land grab attempt by the employer, and is illegal in many countries and states
Illegality be damned - it happens.
It really depends on the employer. At a larger firm, staying legal is usually a big deal and you could consult the company hr ethics patrol or whatever. At many smaller companies, it's just "how it is" and you can either "work 5 illegal minutes every day and remain employed" or "spend the next couple years trying to squeeze water from a rock while spending money you don't have on a lawyer who won't work on this crap."
Every job has plusses and minuses. In some job markets, you have to accept more minuses than plusses while you wait for something better. And sometimes you accept working 5 illegal minutes in order to keep a job that's really quite good. You don't strain at gnats if it means swallowing the camel (unemployment).
If this guy can do better, great. If he can't, he should be careful about managing how he appears to the company. Tread lightly, and keep an eye on the job ads.
Re:Is 'signing online' binding? (Score:3, Interesting)
Unfortunately for you, it's binding enough to get you fired for breaking the contract.
Re:Good luck (Score:2, Interesting)
Often, you'll find that the company has basically used some standard NDA without thinking things through. If this is the case, they may well be willing to modify it -- not just for you, but in some cases more generally. [Your prospective boss might well discover that she's on your side in this discussion, since she may well have signed the same NDA.]
In some cases, the NDA really is intended to be this draconian -- or nobody wants to deal with the hassle of changing it. You're no worse off than you are now; you'll have to choose between signing it and hoping for the best, or going into confrontation mode which may mean you're losing the job
And echoing the comments above: consult with a lawyer, especially on your proposed wording, but (unless things have already gotten confrontational) you probably don't want to bring the lawyer to any discussions or negotiations.
I've tried this (Score:2, Interesting)
I spent weeks on it, including talking to people like Gosling and the then CEO of JavaSoft. My conclusion is that at a place like Sun, you aren't going to get them to budge at all.
Remember you "submit" an application; in other words, you perform an "act of submission" to the corporation. It struck me during this time while waiting in a lobby in one of Sun's sprawling non-descript buildings that it was like in ancient Greece when people made an offering to the local gods. My high school History teacher pointed out to us that a temple of Athena was a collection point for a non-trivial amount of resources which were then used in various ways by the preisthood; it functioned as a means to route resources around the community. Now we have corporations instead. What struck me that the have in common was that humans are too weak to take care of themselves, so we invent these gods/corporations to take care of us and then we give them the means to do that. It only works if you submit your will to the local god. You may not like it, but that's the way it works.
I did manage after several hours to get one word changed in the agreement when I joined a startup at the very beginning: they dropped that they owned any thoughts that I "conceive", leaving just those that I write down somewhere in some sort of medium. I'm sure that I was able to do this only because it was the very beginning of the startup and I was important to them.
Re:Not enforceable (Score:2, Interesting)
It's called "at will" employment. Unless you have a bona-fide "employment contract" which is not what we're really talking about here.
The impression I'm getting is this is more of a "non-compete" contract.
Otherwise, you're employed at the will of your employer.
If they take exception to the fact that you go to anti-war protests on your off time, they certainly can dismiss you for it. Espcially if they're a DOD contractor.
I can cite second-hand examples for the rest of your statements, but I don't have the time.
Basically, if it's in the contract, that's what you're bound to "live by" unless you have a lawyer modify the contract in your favor.
Re:3 words: HIRE A LAWYER. (Score:5, Interesting)
Being asked to sign AFTER you quit (Score:2, Interesting)
After I quit, the company tried this with another employee. She also refused. I don't think either of us would ever intentionally disclose information that would put the company in jeapardy, but it would be legally hazardous to obligate yourself to events in the past. I mean, the other employee was completing her P.Eng, so she might have written something in her journal that violated the later NDA!
Never sign a backward-looking NDA.
Re:3 words: HIRE A LAWYER - BUT ... (Score:2, Interesting)
I grabbed a copy of the file, made the changes I had to have, kept the "look and feel" of the contract document itself almost identical to the original, printed it on a laser printer and had them sign as well as me. They didn't notice the changes, and signed without hesitating or reading.
I still have my copy
I lucked out in a number of ways there, so it is a risk
Best advice: Have a lawyer go over it with an eye to YOUR needs and state law. If he suggests changes, ask for them. Some they might go for, some not. Decide if the compromise is worth it.
(As a backup, it is good to practice the phrases "Would you like fries with that?" and "Paper or Plastic?" until you can say them repeatedly with a smile and without error.)
Tom (Retired EE)
I've done this... (Score:2, Interesting)
Me: I cannot sign this.
Him: Then you are fired.
Me: Then I guess I am fired, since I cannot sign this.
Him: Oh. I'm sure we can work something out.
Me: That's up to you, since I cannot sign this.
Him: Don't worry about it. You do not have to sign this.
That was basically the conversation. It took less than 5 minutes. It was a fairly small company, and it might work much less well in a larger one. But if you've got real skills, don't let the bastards grind you down.
Re:On the Other hand. . . (Score:3, Interesting)
I have worked for a few companies with we-own-you type contracts.
However, I was provided the opportunity to explicitly declare any projects or other IP that I was working with, that I did not wish to give to my employer who shall remain namelesss. (Well, they have a name, but I'm not saying what it is)
The lawyers then consider each entry, and determine whether or not it threatens them in any way. In my case, none of my IP things did.
If they had, I would have discussed and tried to negotiate a special case. However, I wouldn't run screaming to a lawyer and try to rewrite their contract.
my point wasn't that all employers are unreasonable bastards, just that, with current market trends, employees must realize that they have to compromise sometimes, and that compromising doesn't mean saying "my way or the highway"
And larger companies tend to be more set in their ways, and less willing to bend. There are valid exceptions to all of this, as always.
Ignore it... (Score:1, Interesting)
Then throw it out... If it ever comes up, you never signed anything so there's no contract...
Or you can do what I did at another place that actually asked for it back - rewrite it to suit your needs, sign it, and turn it to HR... 99% of the time they sign it, hand you a copy back and stuff it in a file. If it ever comes up, well, the frigging thing was signed by THEM... They can argue whether or not the person signing was authorized to do so - as far as I was concerned, they apparently had implied authority to do so, or they wouldn't be doing so - thus they accepted it on behalf of the company - changes and all... It's not my fault if they didn't read what they were signing...
Finally - I always modify those things to say that what I develop on my own time with my own equipment off the premises of the employer is my own property and that they have no right to it unless I grant them a license. I further state that what I develop on their time with their equipment on/off the premises belongs to them. I make the agreement expire upon termination of employment...
Re:3 words: HIRE A LAWYER. (Score:3, Interesting)
One piece of the negotiations went roughly:
"That's unfair restraint of trade and not actually enforceable."
"We know, we don't really mean it."
"So you won't mind dropping that clause."
"No, we need to keep it just in case."
But eventually, after over half the workforce had returned the contracts with parts struck out, they gave in.
No lawyers were involved.
This was in the UK, and one of the things that we got struck out was the agreement that Delaware state law would govern the employment contract just because the US company that owned us had been bought by a US company.