Beware Employment Contracts 619
A lot of people think they have no negotiating ability. You do. When you're thinking of signing on with some company, and they send you a boiler-plate contract to sign, don't just sign it and send it back. Read it carefully. Alter it as you see fit, striking out sections, adding sections, and initialing each change. Then sign it, make a copy for yourself, and send it back.
Where it says:
company owns the rights to all work produced during the term of employment
Just strike it out, and change it to:
company owns the rights to code written during working hours and in direct furtherance of any tasks assigned by the company
See how much nicer that reads? Now, when you do this, there are two possibilities: either the company will ignore it and hire you, or they will object to your alteration of the contract. In the second case, if they stand firm on the boiler-plate contract, I suggest you simply ask for more money - for instance, if you were expecting an 8 hour/day job and their contract asserts that they own what you do 24 hours/day, then you'll need at least three times as much salary to compensate.
And if you and the company cannot reach an agreement, well, maybe you didn't want to work for them anyway. If they're already screwing you before you've even signed on, that's not a good omen.
There's already some good advice in the comments on the perlmonks story, so I'll leave it at that.
Argh.. (Score:4, Interesting)
Joe Carnes
National Geographic and Intellectual property (Score:2, Interesting)
System Administration? (Score:2, Interesting)
However, a sysadmin position is a very broad job. Does the 100-line perl script I wrote to move SNMP data into a database (which I did for my own use) count as something relevant to my job? Yes, it very well can.
Any idea how to navigate these invention clauses when you are a jack of all trades?
Re:Argh.. (Score:5, Interesting)
You can cross off entire paragraphs. I've done it... many times. In one case they told me that a particular clause wasn't enforcable, I smiled and said "Great, then we can remove it.". In another case, I asked them to clarify what the contract meant... and we wrote in the "clarification", which was very limiting and granted me the exceptions that I required.
In general, if you are doing open source software that is not directly related to your work; you are seen as someone with initiative... and good employers should encourage this sort of professional involvement in your field. If they try to "own you" and not let you be a "professional" then call 'em on it. They want a professional, a professional does these sorts of things.
Re:At least the code is GPL'd (Score:3, Interesting)
In a worst case scenario, what happens when you merge all these patches from someone and then two years later some company claims that he didn't have the rights to assign ownership to you? Even if you manage to strip all the patches out, you then need to make sure that the replacement patches aren't borrowing any ideas from the old intellectual property.
Re:Read your contracts (Score:4, Interesting)
When I started at my current employer, I received a nice plain employment agreement. It was good. I signed it.
Then they wanted to change my conditions, which was also good, because it mean more money, so they gave me a new contract to sign.
It has an ambiguous clause in it regarding IP ownership. I corrected it, signed the new version, and sent it in.
Everyone around me was saying "You can't do that."
Oh yes I can.
I don't think they ever read my version.
I don't really care - I know that what I signed gives them the rights to anything done on their time or their equipment.
That's it.
One partial fix for that (Score:3, Interesting)
Another thing that also helped is that since at one point a part of their software linked to my (LGPL) library, making it "illegal" would also have made their own product illegal.
Applicability is Dependent on State Law. (Score:2, Interesting)
I found that in California, it had been previously upheld in court that anything an employee creates outside of his work environment, without using company resources can not be considered for ownership by the employing organization.
The only other thing that may bite you in the ass is non-compete agreements you may have with your employer.
Re:That wouldn't fly in California (Score:4, Interesting)
Somewhat puzzlingly, the larger, more bureaucratic companies do not always require this waiver. I expected it to be the other way around.
Providing some small hope for humanity, I also know of a lot of very qualified people who have left over this very requirement.
"Told you so" says the FSF (Score:3, Interesting)
OG.
My experience (Score:5, Interesting)
When I got the form, I wrote back with all the changes I wanted to see in order to protect my rights without adversly affection theirs (hey, I can understand a company wanting to protect themselves, so long as they understand my desire to protect myself too). A couple weeks later, the company's lawyer came down to talk to me, trying to convince me that I was taking the document too literally and that the company would never really use it against me. Of course, if that were true, he would have had no problem changing the document as I asked, but his excuse is that this was the same document that everybody signs.
I took the document and marked it up with the changes I wanted, and added a disclaimer which basically said "my signature on this document is contingent on me being able to own my own work". Of course, I detailed what I defined as "my own work". After making these changes, I sent the document in. About two months later, I received another copy of the form in the mail with a letter saying I had never signed the document, and they wanted me to sign this one. I never did, and they haven't bothered me with it since. If they were to hassle me with it again in the future, I have no doubts I could find a better job elsewhere.
Re:this is a serious problem (Score:3, Interesting)
imagine a person working on code at work then coming home and doing the same thing.
I guess it matters what your interpretation of "the same thing" is. Do you mean "programming"? Do you mean "programming Web applications"? Do you mean "programming Web applications for the oil sector, communicating with G7527 devices"? If someone spends 9-5 contributing for his employer, and then spends 6-11 of sweat and tears on "his big break", then please realize that that is the spirit of innovation, and that's what all societies needs to encourage more: Every big company was founded when someone broke the chains from a restrictive engagement. In an ironic twist, these employers who try to strong-arm their employee's personal projects should realize that most employees bring skills TO work FROM their personal project (i.e. usually people work on wideranging things that they'd never get a chance to in the daily grind, but once they've perfected it they can leverage those skills in the workplace). I'd like retroactive 24-hour a day pay instituted for any organization that feels that it owns its employees. As a sidenote: Organizations that fairly compensate ingenious contributions, product ideas, etc, never seem to have this problem: They realize that their employees are what brings in the paycheque, and if Bob thinks up a $40,000,000 idea while mowing the lawn, well then it might be in their best interest to offer conditions that reward him for it. Instead, most of these companies with unbelievably overpaid upper management, CEOs with golden parachutes (who often sit on dozens of boards at different companies), want to be able to say : YOINK! There, now get back to doing that COBOL code. FUCK THAT.
However, the crux of the matter is this: We live in a capitalist society. Capitalism is an eat and be eaten atmosphere, and it's one where EVERYONE is ALWAYS a free agent : You are always an entrepreneur - No company EVER owns you. This (at least where I live) is not slavery, and no one can conscript you into bondage (well, unless you're into that sort of thing). The fact that anyone would even CONSIDER signing contracts like that (or that they are legally allowable or at all enforceable, or even morally comprehensible), is disturbing. Employers pay an employee for the known work that they contribute on company projects, and they compensate the employee for the work that they contribute: If someone is spending their mental energy on personal projects and doesn't contribute to their employer, then naturally they won't get raises, and they might even get fired : That's the entrepreneurial spirit of a capitalist society. Never would I justify an employee stealing code from work projects (nor do I think anyone else is), or stealing proprietary technologies, but for anyone to claim that the spirit and upward potential of someone is constrained because they have a 9-5 gig disturbs me, and if that's what the idea behind our society is then bring on the revolution. Did I nap through when we warped into the communist regime of the USSR?
I did this, and it worked (Score:3, Interesting)
Then I showed him to source to the CGI and DBI Perl modules, and told him that we'd have to extend our timeframe by 6 months while I rewrote all that funcionality. Then he got it, and I've had no trouble.
or in Washington (Score:5, Interesting)
HOWEVER if the work you did on your own time was similar to the work you did at your job (i.e. you designed websites for your job and then you design websites on your own time) then they may have a claim. But typically you just need permission from your manager ahead of time ("Can I go hack websites on my own time?" "Yeah sure") to make your work yours again.
When I worked at Microsoft, they explicitly prohibited people from working on open source (this was not in the contract (or at least the one I signed years before), just in an email). The rationale was not to pollute *Microsoft's* code with GPL code that could then result in someone claiming that Microsoft's code needed to be GPLed (i.e. the opposite of what happened in the situation being discussed here).
- adam
But seriously, what are they gonna do about it? (Score:2, Interesting)
Sounds to me like the company he works for is getting taken to the woodshed by its legal department and/or legal counsel. If company's said management knew better, they would realize that pursuing this is futile. Like Compuserve GIF futile. Frauhofer MP3 futile.
To say nothing about the untold benefits his company has reaped from open source development. If a single TCP/IP packet has flowed into or out of his company's LAN, if Perl is utilized, or if some other technological goody with roots in open source development is used there, then those fargin' iceholes need to step off.
This is just another example of how far behind the technological curve (especially regarding open source software) our legal system and legislative bodies are.
Re:Read your contracts (Score:3, Interesting)
On the other hand, often the changes are never even seen by human eyes.
Re:That wouldn't fly in many places (Score:1, Interesting)
IANAL, but I remember reading an article in the WSJ about 10 or 12 years ago about the general unenforceability of many "standard" employment contracts.
For instance, the owner of a hair salon in Sandusky, Ohio required hairdressers to sign a non-compete agreement that forbade them from doing business within a specific distance (I think it was 5 or 6 miles) of the owner's salon if they left. The problem was that Sandusky was smaller than the distance specified, so the non-compete essentially forbade former employees from performing their craft in Sandusky. The contract was deemed overly restrictive and thrown out.
It's apparently common for companies to knowingly put unenforceable clauses into standard contracts in order to scare uninformed employees into behaving as if they were enforceable.
A programmer friend of mine (who lives in AZ) has been told by his attorney on numerous occasions not to worry about signing various overly-restrictive employment contracts because the clauses in question were ridiculously unenforceable.
I was once asked to sign a similar IP clause to the one causing so much trouble for Tilly in order to work in a Radio Shack store. I refused to give Radio Shack ownership of any code I wrote on my own time and using my own computer, especially considering I wasn't employed by Radio Shack as a programmer and teh job I would be working was a part-time job.
Tilly's in a much tougher position. New York isn't a "right to work" state, so lots of crap that would be unenforceable in other states is de rigeur in NY. In addition, he is employed as a programmer by his employer.
Unless his employer can be made to see the extremely bad PR effects their actions will have, he's completely screwed.
Re:You CAN'T waive that provision (Score:3, Interesting)
IANAL either, though.
Re:This only hurts the employer in the long run (Score:2, Interesting)
Very true, and very sad. My father was an Electrical Engineer, and Senior Designer at a company. At his wake, his various patents were on display, and a friend commented that we would be left well off from the revenue. I had to tell him that the company owned all the patents, they just gave the engineers pretty framed copies to hang and admire. We got zilch. That was the employment agreement. The saddest part is that the company was gone 3 years later due to mismanagement. Thousands of patents they owned from the work done by their engineering staff became unprotected. And we still got zilch.
pertelote
http://pertelote.crosswinds.net
Signing your life away (Score:5, Interesting)
A. The invention directly relates at time of conception to the employer's business,
or
B. The invention was created at least partially using company equipment.
The law also states that any contract may not override the law.
Check your state's employment and work-for-hire laws (if you work in a different state than the company, usually the laws of the company's state apply). Hopefully this helps people.
Any opinions or ideas expressed herein are solely my own.
Use a alias for opensource development work. (Score:3, Interesting)
They will never find out who I am without violation of several privacy laws.
Re:Use a alias for opensource development work. (Score:1, Interesting)
They will never find out who I am without violation of several privacy laws.
Good idea. I don't understand why people don't do this more often. We wouldn't have the DeCSS fiasco if the authors remained anonymous.
Re:Promissory Estoppel (Score:5, Interesting)
Sorry for not being clear. Many times a direct manager will make remarks indicating that outside work (especially open source work) is perfectly OK. They do this to keep up morale and they know that professional involvment like this is a good thing. Thus, the manager will make an unwritten policy (via private talks in person) that is directly against the work-for-hire agreement. Then, when things go sour, and upper management finds out, or the lawyers/venture capitalist get into the picture the story changes. The middle manager lies about their promise...
I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
Since no middle manager is going to admit to making the verbal promise (or it's their job) the employee is left hanging. A resonable judge will understand this situation and use the facts as a guide: (a) the manager knew that the employee was doing open source work; (b) the manager didn't do anything in writing to confront the employee about this fact (turns a blind eye). If these are the facts, then I'd say the employee has a good claim that verbal statements were made in private.
As for Silence, this is _exactly_ what the doctine is all about, no? If the agreement was verbal and both parties agreed that there was an agremment you don't need this doctrine, do you? The doctine is for verbal agreements which one party claims didn't happen. Then the judge has to figure out if it is resonable to assume that the verbal agreement did actually occur.
But then again, I'm not a lawyer... perhaps you are. For other info on Promissory Estopple, see Google, in particular Bus477 [gallaudet.edu] notes which say:
Promissory estoppel
A doctrine in which a non contractual promise may be made enforceable to avoid an injustice. Acceptable alternative ways of describing promissory estoppel are:
* A doctrine which arises when injustice can be avoided only by enforcement of a non enforceable promise.
* Promissory estoppel is used where, although there may not otherwise be a enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.
* Promissory estoppel is used to enforce charitable gift pledges where the charity relies on them.
Where do you draw the line? (Score:1, Interesting)
Re:If you hate your job anyways... (Score:2, Interesting)
I would imagine that employee contracts that include clauses like this would open up a whole new world for liability. If Tilly's money-grubbing-employer successfuly voids the GPL and the software that is in the wild is not be covered by any EULA.... If it breaks and causes damage, wouldn't grieved parties come knocking on unsaid-money-grubbing-employer's door lawsuits in hand?
Changing the contract worked for me (Score:4, Interesting)
So they were happy with that. But a few months later when I was approach by a national TV network to do an interview about my software I checked with my boss about it and word came down the line that if I said anything I'd get fired [shrug] Can't win them all but I guess that was reasonable as my software competed with a product my employer was working on internally (which was one main reason they employed me in the first place, because of my specialist knowledge).
Live and learn.
Comment removed (Score:5, Interesting)
Is Tilly's employer a Microsoft Solution Partner? (Score:2, Interesting)
I resigned. (Score:4, Interesting)
Re:Read your contracts (Score:3, Interesting)
When I've not been able to avoid the document completely, I do modify the clauses that imply or state that the company owns or has any kind of right to the products of my non-working-hours labor.
Re:Argh.. (Score:2, Interesting)
I gave up the hardware end of things in 1998, so any changes in the environment since then I'm unaware of. Now, I'm a self-employed internet applications developer, and I don't sign other people's contracts any more; they sign mine.
Re:That wouldn't fly in California (Score:3, Interesting)
Hahahahahahah..... I used to think that section of the CLC afforded me some protection, too.
See, I used to work for a company in Cali. In fact, it was a company that was (and is still) producing a Linux distribution. Despite having profited from Open Source for years, the DotCom boom and all the money it brought to the table encouraged management to start making the Great Intellectual Property Land Grab. One of my co-workers came in one day to discover that the company wanted to claim a small perl he wrote on his laptop in his apartment at 2am as vital Intellectual Property. The company's position was that the "relates to company business" exception could be excercised because it was a "software company" (and we were a "linux distributor" when the contract was signed a few months earlier) and his perl script was obviously software.
If he'd been willing to fight, I'm pretty sure that he could have won as I'm pretty sure that the shady stuff they were trying to do wouldn't stand up in front of a judge... but in the end it was easier just to let the company have the damn script and quit the job to get away from the contract terms rather than to fight the good fight in court and try to pretend that management wasn't going to hold a grudge and try to fsck us later.
On a positive note, the company in question has been relegated to irrelevance by the marketplace and is currently struggling to find something to sell that will actually make enough money that they might one day dare to dream of profitability. And all that despite the fact that they own the IP rights to a small perl script. :-)
Kharma's a bitch.
Any rate, point is... Even if it looks like the law protects you, get them to admit that you're protected in your contract as well. "Is this your signature?" is such a damning question that really undermines your argument in court... I'd much rather the other party be the ones that have to answer it than myself.
I'll Second That... (Score:2, Interesting)
I'll second that, plus tell you a little amusing story.
I was working at a company that decided about 6 months after I started to give us one of these very draconian employment contracts.
First, I totally ignored it. While all my coworkers dutifully signed and returned as requested, I did nothing.
About four months later (!) the HR drone contacted me and said they couldn't find my copy. Fine, please send me another.
About one month later, the HR drone contacted me again to say I hadn't returned the copy. I said: "Right, What about sections 1, 7, 9, 32 34, 35, and 37? Can you tell me the ramifications of those?"
About two weeks later, I had my answers. So I said I had sent my copy off to a lawyer.
Another two months later, I quit.
Right, but it doesn't end there.
So I signed on to another company, and they were smarter. Part of the sign-on package was this draconian employment contract. But it has a sheet where you can list things you've done prior to the job.
I filled that entire sheet and two more with literally thousands of items including such gems as "C program for taking input, doing logic, and producing output." Believe me, I was comprehensive. The HR drone took one look at it, signed it, copied it, and gave me my copy.
Greeeeat.
I've generally followed this line of action since everything I do is a work in progress, then all outside-of-hours work I do on an existing project (and I have many in my CVS repository) is prior work and covered under that big sheet I filled out.
And yes, I'd be willing to back this up in a court of law.
Good luck, people. Remember, though, the best way is just to change the language of the contract. HR drones aren't known for their tenacity. They are usually "yes (wo)men" and aren't used to being hard-nosed about anything.
Re:My experience (Score:2, Interesting)
Until November 1st, I had been the guy in charge of the the contracts, When our attorneys came to me with the IP agreement they wanted my employees to sign I sent it back and said "try again. These are creative people, not indentured servants." They came up with a much more reasonable agreement, and included an addendum on which employees could retroactively list any projects they were working on that they didn't want covered by our employment contract. It worked very well and everyone was happy.
My company closed its doors Nov. 1, and I had to find work, and after six weeks, I did find work at a very cool company who also hired one of my former engineers at the same time. He and I went through the whole HR process at the same time and were both handed "employment contracts" at the same time. We read them in detail and both refused to sign the contract based on the same IP paragraph that said "We own you and everything you might possibly think of or create for up to one year after you leave our employ." The HR person was somewhat stunned and said she'd get the lawyer to change the wording so we could sign it. It's been three months and I've never seen the contract. I asked one of the executives about the contract and he told me not to worry about it, he wouldn't sign it either.
Re:At least the code is GPL'd (Score:3, Interesting)
If he was never authorized to license it out in the first place, then the licence is null and void, and the company can demand that anybody using it stop, and that all copies be destroyed, and that nobody distribute it.
What if the code he wrote was a derivitive work of other GPLed code? In that case his employer can claim the copyright on the derivitive work, but they are required to GPL it.
False positives (Score:3, Interesting)
About a decade ago the US Government decided to drug test about 8000 senior civil service employees applying for promotions. These are all highly skilled professionals with a lot to lose, so there's very little chance that any will be using drugs at this time.
About 8 people tested positive. Aha!, said the feds, this proves the validity of these tests! We would have never suspected these highly respected individuals were drug fiends without this testing! They actually used the relative handful of positives as "proof" of the validity of the tests.
Not so fast, countered the lawyers. No drug test is positive, and even if have three independent tests with a 10% false positive rate then 0.1% percent will be falsely labeled as drug users. Or about 8 out of 8,000. (In reality, of course, systemic errors such as a forgotten poppy-seed bagel will tend to skew all three tests.) The relative handful of positives, and the context of the test, suggests that these are innocent people wrongly accused.
The case actually made it to the Supreme Court, and as I recall the Supreme Court essentially said that it couldn't be bothered with questions about the scientific validity of tests when *drugs* are involved. The individuals were denied promotions on the basis of these tests alone.
Adding further insult, many mandatory "drug treatment programs" that can be triggered by these false positives *require* you to admit to your "problem" as part of your "treatment." If you do occasionally smoke a joint on weekends, you can cop to it and keep your job. But if you're drug free you're labeled uncooperative and can be terminated for resisting "treatment."
How to protect your intellectual property rights (Score:3, Interesting)
A few hints:
This is the rule at Microsoft (Score:2, Interesting)
I thought that seemed unnecessarily draconain.
Definitely (Score:3, Interesting)
Of course this is all totally unrealistic pie-in-the-sky stuff, because we computer folk are in our infancy politically. However I think that as the vice tightens (SSSCA, etc.) we will be forced to get real about political action. That's another rant, but briefly it means:
Lastly, to those who worry about the effect of such measures on Tilly: I feel bad for Tilly, but I'd happily accept the loss of one coder and some modules in exchange for a high-visibility smack to these corporate abusers. I would like this company to end up as a cautionary tale on the front page of the Wall Street Journal. If we could accomplish that, it would be worth lots of short term pain.I would like to set such an example that corporate decision-makers in the future shy away from such actions as they would from flying a Nazi flag over headquarters. It's not illegal (in the US) but with sufficient effort on our part it could be made very expensive and unattractive.
/usr/src/linux/MAINTAINERS (Score:2, Interesting)
This was brought up in the MAINTAINERS file that comes with the linux source:
6. Make sure that you have the right to send any changes you make. If you do changes at work you may find your employer owns the patch no you.
Re:Scary (Score:2, Interesting)
I walked away from a 100/hr contract due to this (Score:2, Interesting)
They wouldn't budge claiming "This is just standard stuff".
If I had signed they would own the work I did for the other company. If they sued guess who would be holding the bag?
I wouldn't sign and lost the contract.
I FELL VINDICATED! Thanks for the story
What did he do to piss them off? (Score:2, Interesting)
It sounds like he must have done something high-profile to get noticed, otherwise they never would have gone looking for his employment contract and run it through a black-letter-of-the-law interpreter.
I think the issue that has been uncovered is critically important, and I feel better educated because of it, but I can't shake the nagging feeling that Tilly must have somehow angered management - maybe by spending too much time on Open Source projects and not enough on his company assignments? Hmm?
His PerlMonks posting wasn't too forthcoming about what started this whole mess. I'd like to know what did.
Re:Argh.. (Score:2, Interesting)
Re:Argh.. (Score:2, Interesting)
At my current job I had to sign an IP forfeiture agreement, and in the blank area where I could name code that the company could not own, I of course listed things as my graduate projects, a few pet projects by name, and the clause "and miscellaneous current and future open source projects". HR reviewed all my stuff and this was not even contested, so I am covered.
Folks, we have to stand up and push back. There are times to compromise, but this is one area that is entirely abused.
Your own time ... your own equipment ... (Score:2, Interesting)
Ok, I have a question for all of you ... I currently have an "open-ended contract" with my current "employer" ... everything that we have agreed upon is verbal ... IOW, I haven't signed a thing ...
Since this is the case, I started early on using my equipment (laptop) at home, and now more and more at my employers' office. In fact he hasn't even offered me equipment ... which is fine by me, since it takes quite a while to make sure that you have all of the tools on the machine, etc.
Granted, right now I'm too busy working on his stuff to work on anything of mine, I have several ideas for utilities that I would like to write ... I even have design documents drafted up to make sure that I wasn't drunk when I typed them (and yes they still make sense) ...
If I were to start on my own projects, about the only thing I would have to worry about would be that it's on "my own time" ... which has never been brought up, since in the _past_ I have worked at home on his project ... lately, it's been more of a 9-5ish job ...
Since I don't have anything (not even a Non-Disclose) signed ... should I, or do I need to be worried about starting my own projects?