This makes me pro-regulation and anti-market, but unfortunately I see exactly zero ways in which market can make contracts better. What are you expected to do in this situation - quit?
I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively voids such clauses in employment contracts: http://www.quora.com/Legal-Issues/Which-California-laws-prot...
How exactly will it help when all employers adopt stupid and evil clauses in their contracts? Because that's what they do. Legal documents ("best practices") seem to circulate between companies, growing more bulk with each round. There's no place in this process for the consideration of employees' wishes. There can't be because legal department is famously isolated from the rest of the company and only cares about covering their own ass. They don't care about productivity. They don't care about happiness. They only care about having all bases covered. So I don't see why they won't grab every right from you that they can without violating the law.
If the law is where they stop, then there should be the law and nothing else. There's no reason for all those contracts-writing people to be employed.
> ... except for those inventions that either: (1) relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer ...
As a programmer, there's not a lot I can do that is going to be considered wholly unrelated to what I'm employed for... at least it would be murky enough that the employer would have a good court case. This is infinitely more so for anyone working with Google, Apple, or any other company that has got their fingers in everything.
As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead?
If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I think not, people would revolt and try to change the laws so that the company cannot do that. Why should BS NDAs be any different?
People forget that:
a) we're not necessarily talking about the top 1% of employees companies fight over, but also for the rest 99% of the people, that don't have an upper hand in negotiations and don't always have the luxury of moving around, staying out of a job long enough to find a better one, etc.
b) we're not necessarily talking about a "seller's market" such as programming
c) even if we did (b), we're not necessarily talking about now and the Valley, but also about times and places where unemployment is rampant.
There are a lot of considerations on the elasticity of demand for labor, information asymmetries between employer and employee, relative bargaining leverage, etc, that weigh in favor of laws to regulate the labor market. I think a great example is bans on NDA's or non-competes. They help make the labor market more liquid and prevent anti-competitive labor practices, even though they are a restriction on contractual freedom.
I don't doubt that future contracts will say "We reserve the right to update this in the future as conditions change in order to remain compliant with applicable regulations and laws and in order to protect the interests of the company."
Once you sign that, even with a permissive clause, they come back later than blam! Change it and you've pre-agreed to their changes which can now be much more restrictive.
The problem is that the effectiveness of this relies on the bargaining power of the employees, which, in a "buyer's market" is not that much.
Better to get the law to change to forbid such abuses for everyone.
For example , what about a startup that wants to make signing of an NDA a requirement for employment? Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash?
What about employments that might deal with highly sensitive/classified information and thus require certain background checks to be performed before & during employment?
Well, make that punishable by law, and no need for an NDA.
That tends to work well in a one-size-fits-all well established world, but tends to work particularly poorly in new and emerging industries.
If I want to quit my job all I have to is not show up to work and eventually, after a few attempts at communication, they will send me a form letter and my final paycheck and remove me from the list of active employees.
Of course, being a more polite sort, I'd probably at least email my manager that I wouldn't be coming back.
But seriously, how could it be easier?
Engineers often misinterpret the provisions of the law.
" (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer."
#1 is pretty vague, and it has been interpreted broadly by most courts. Almost every engineer i've talked to think it means "unrelated to the work i'm doing for the employer" (which is really part #2 of the law). However, it in fact says that not just "work related to stuff you are doing for your employer", but "work related to stuff your employer does at all or has said they will probably do in the future" can be owned by the employer, even in your spare time.
So if you work for a company that does a lot of things, you should not expect to own anything.
In practice, this is not very different from the laws of most states.
While I am a lawyer, this is not legal advice. Just trying to correct a misconception.
In fact, in Germany we have the "Arbeitnehmererfindungsgesetz (ARBNERFG)" [1] which stipulates that your employer has first right to all patents and inventions related to your work, even if you create them in your spare time. The basic reasoning is that your employer supplies you with all tools and ressources required for the invention in question. It would be way too easy to just clock out, return to your desk and a minute later write down the world formula and sell it for billions. You're entitled to a compensation though.
The law looks a little stupid when applied to computer science but makes much more sense in a research or engineering context.
[1] I just adore german legal terms.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...
2870 is what you're most interested in. IANAL, this is my lay understanding of the law.
This advice does not have to be sane, or efficient, or indeed have any consideration towards the interests of the company other than "prevents legally actionable mistakes". A few days ago HN saw an article about setting goals and perverse incentives. This is a simple example.
Hypothetically, someone was reviewing the Sony USA employment contract and saw that there were, perhaps, non-video-game related developments which might be valuable. Then they asked the legal department "Please supply contract terms that give us as much as possible." And after an hour or two of research, they did.
The surprising thing to me is that they tried to change language for existing employees out of cycle. If they did it during a regular review cycle, even fewer people would have noticed.
Strong disagreement. As a counterport, would you agree to the following: ``the primary function of a programming department is to crank out code. the code doesn't have to run predictably, nor be maintainable nor indeed have any business requirements. KLOC is the king.''?
When I'm programming privately in my spare time, my code doesn't need to run, be maintainable or useful or anything. But as long as I'm clocked in during office hours, my work should further company's goals, in harmony with other teams and projects. And just as much with legal departments: those should consider the overall effects of advice they give out. If not them, who else is to do such analysis -- some meta-legal department?
Been there just recently; an employment contract template prepared for my company by a lawyer was so one-sided and full of risks for potential employees, I stood up to the CEO and voiced against its proposed form. I've warned the CEO a lot of self-respecting hackers would rather give up offer than work on such conditions. The contract, while legally covering the company, would have detrimental effect on our ability to hire good hackers in the first place.
OP didn't say the primary function of the legal department was to crank out legal language. He does say their job is to crank out advice that "prevents legally actionable mistakes".
Similarly, I think most developers at core are expected to output code that fulfill some communicated requirement.
>Strong disagreement. As a counterport, would you agree to the following: ``the primary function of a programming department is to crank out code. the code doesn't have to run predictably, nor be maintainable nor indeed have any business requirements. KLOC is the king.''?
I don't see where you are getting KLOC; KLOC is rarely a metric that Programmers like. They'd choose readability, or (run-time) efficiency or something.
But yes; That's what you see. In both cases, really; I know last time I went to a lawyer for help with a AUP or privacy policy, I got something ridiculously one-sided that protected me, but would have been an absolute PR disaster to actually hand out as policy.
And yeah, I've seen programmers come up with solutions that were equally good from a purely technical perspective, but equally insane from the perspective of the whole business.
This is why managing a business is so difficult. You can't expect the lawyer to understand PR any more than you can expect your programmer to understand marketing. (I mean, sometimes you get lucky and find someone that is pretty good at both... those people are quite valuable, if you can find them.)
Actually, that's another discussion entirely. When you see the company you are working for (as a narrow specialist) doing something that is bad outside of your specialty, how hard do you try to change that? I mean, certainly, you should say "This isn't my specialty, but I think doing X is wrong, I think you should do Y" - the question then, is how hard do you fight for it. I mean, it is the person managing the company's job to choose specialists who are competent. At what point do you step out and say "Hey, you screwed it up" outside of your specialty?
I used to have a very poor opinion of legal departments until I had the opportunity to work with legal departments staffed seemingly exclusively with people who were at least as sharp as the folks in engineering. Turns out, good legal departments are as interested in solving problems as good engineering departments.
Some coders push buggy code and some coders polish their bits endlessly. The good ones write code that meet the requirements in a reasonable amount of time and move on to the next task.
Some lawyers are strict letter-of-the-law types and some will approve anything to make the profit centers happy. The good ones balance the legal risks with the commercial reality.
Under the circumstances I'd be curious to know what the cost-benefit analysis of this change might look like. Given how seldom employment contracts are negotiated and how rarely these IP clauses are enforced, my guess is the biggest cost might be something even more intangible, such as stifled employee creativity.
Yes, it felt a bit 'nuclear' dropping such a charged statement like that, and even when I bring it up as an example in conversation, some people cringe - a 'sex tape' analogy might be less offensive to some, but the basic premise still stands. Any company that wants to claim ownership of every piece of content or code I 'create' needs to understand what that really entails. It might actually give some people license to work on legally questionable stuff (not child porn so much as, say, banned crypto), knowing that they don't really 'own' it and thinking someone else might be responsible for the consequences.
Otherwise you could technically make the same argument about instagram for example.
Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure, would I sign away all my IP created during employment for $x? yes, but no one has yet come close to that $x in job offers I get.
In the first case, the corrected terms got applied to everybody in the company but in the second, I believe I'm the only one who is protected thank to that written note.
I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc..
I think limiting IP ownership to right of first refusal is important for the same reasons. If I'm guaranteed that either the company will use the IP I developed, and I will (presumably) be rewarded for it or at least be able to include it on my resumé, or that I can own the IP myself, it is worthwhile to me to work on projects in my spare time.
However, without that guarantee, it's entirely likely that works I produce which are significant to me but not to my company will end up gathering dust on a shelf. Hence I'm disincentivized to work on such (potentially enriching) spare-time projects.
See http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab... if you don't know what I'm talking about.
(That said, Sony probably does enough different things that the difference does not matter much to most people.)
Although not around a sex tape, I though about a computer virus released from my Earthlink corporate email account. If I sent it out the virus technically belonged to Earthlink and not me. However, after talking to a lawyer about it years later, he explained there is ways the corporation could get out of the clause.
Honest employers want to keep you from competing with them while on the payroll, and want to avoid any claims that company IP belongs to you. Amend the document to address that and they may agree.
``The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury.[1] The "reasonable person" is an emergent concept of common law.[2] While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction,[2] the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.[3] The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.[4][5] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.[6][7] The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law. The standard also has a presence in contract law, though its use there is substantially different.[8] It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.[9]"
I don't know what state the author was in when he was working for Sony, but California State law prohibits such arrangements in employer agreements (Labor code section 2870):
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...
2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
It's an enlightened place.
I expect to have to prove it, to some extent, if it ever came up. Which is one of the reasons I have a private github account; commit logs on machines not controlled by me might be useful.
Sounds like a non-compete clause to me; ie. basically unenforceable.
