[HN Gopher] Contracts you should never sign
___________________________________________________________________
Contracts you should never sign
Author : bndr
Score : 244 points
Date : 2023-01-27 08:48 UTC (14 hours ago)
(HTM) web link (vadimkravcenko.com)
(TXT) w3m dump (vadimkravcenko.com)
| petilon wrote:
| A big one is missing in this article: The clawback provision.
|
| In 2011, when Microsoft bought Skype for $8.5 billion (that's a
| B), some former employees and executives were outraged when they
| found that their equity was worth $0 because of a clawback in
| their equity documents.
|
| "The only mention that the company had the right to buy if he
| left in less than five years came in a single sentence toward the
| end of the document that referred him to yet another document,
| which he never bothered to read."
|
| https://stockoptioncounsel.com/blog/standards-ownership-cant...
|
| https://www.forbes.com/sites/dianahembree/2018/01/10/startup...
| johndhi wrote:
| Eh. I'm a lawyer and don't agree with a ton here.
|
| Work for hire of copyright and IP is standard. That's what it
| means to work for a company: you aren't working for yourself,
| you're working for them. You should look closely to make sure you
| can do a side hustle but other than that this is a little
| foolish.
|
| I also disagree that contract negotiation means all that much.
| Certain lawyers are assholes but other people at their company
| might not be.
| feoren wrote:
| > you aren't working for yourself, you're working for them
|
| So the company owns the poop I excrete into the toilet at 2:00
| AM on a Saturday night? The company owns the Crayon drawings I
| make with my child in the evenings? The company owns the poetry
| I came up with in a fever dream after some weird drugs? You say
| "you're working for them" like it implies some indentured
| servitude, where I'm living in the company town and they get to
| say how I live my life. I'm doing some scoped job for them in
| pre-defined hours for a pre-defined purpose, and for everything
| else in my life, they can get fucked. Honestly, your inhumane
| attitude is why people hate lawyers.
| donohoe wrote:
| You can also decline and often thats ok.
|
| Whenever I had meetings with Google and went to their offices
| they had this sign-in process which is essentially a NDA while
| you are there. I always declined it.
|
| It caused consternation in only that they were not used to anyone
| doing that.
| bndr wrote:
| Hey everyone, author here :) I'm sure most of you have more
| experience with contracts, so I'd like to hear your thoughts on
| stuff we, developers, shouldn't sign.
|
| Cheers, Vadim
| sclarisse wrote:
| You missed the non-disparagement clause.
| daniel_iversen wrote:
| Hi Vadim, it's so great you've written this and are trying to
| help others! It might be worth pointing out that in some places
| (Australia, I think California? And probably the European
| Union) the non-compete clauses can't be enforced because
| companies aren't allowed to stop you from making a living.
| Anti-poaching of employees sure but not anti-compete. So maybe
| people could do a quick google for their country or state to
| see if it's even something to worry about (so they don't reject
| a job for something that in practice isn't relevant). Also,
| I've noticed that the NDA components are usually very
| reasonable as they mostly cover "material non-public
| information" (or something like that) so usually it's not an
| issue, but good to check for sure.
| TravHatesMe wrote:
| Good advice. Same with Canada.
| anonu wrote:
| Very useful article. Thank you for putting it together. On one
| hand, you should read an employment contract or options
| agreement down to the letter, as you highlight. However, in my
| experience, most contracts have these provisions, at least in
| the US. Also, companies are going to be reluctant to deviate
| from a form template as this creates a legal mess down the
| road. My point being, you'll find it hard to "never sign" if
| every employer does this.
| 082349872349872 wrote:
| strike out and initial?
| anonu wrote:
| Sure - reducing items might work. But asking a company to
| give you tag along drag along rights when they weren't
| there just wont float.
| ccleve wrote:
| This is exceptionally poor legal advice.
|
| Non-competes are legit if they are narrowly limited in time and
| scope. It's perfectly fine for a company to demand that if they
| hand over their proprietary know-how to you, know-how that has
| cost them years to acquire, you won't take it to the competitor
| across the street. And no, an NDA is not enough to protect them.
| They own this information, not you, and no, you can't take it.
|
| NDAs are legit for obvious reasons.
|
| Work-for-hire clauses are absolutely required. If a company is
| paying you, they own what you create on company time and company
| equipment. No, you can't take it and sell it elsewhere. It's
| perfectly fine for you to resist signing a clause that says they
| own what you create offsite (so long as it's not related to your
| day job), but a company cannot continue to operate if employees
| can take what the company paid for.
| dilyevsky wrote:
| Maybe they are legal (definitely not here in California) but
| the moral argument you're making doesn't make much sense
| because it works both ways - company has no intention of
| unlearning your past years of experience when you leave and so
| neither must you
| feoren wrote:
| > It's perfectly fine for a company to demand that if they hand
| over their proprietary know-how to you, know-how that has cost
| them years to acquire, you won't take it to the competitor
| across the street.
|
| This _never happens_. For software developers, most
| "proprietary know-how" is awful in-house inner platforms that
| work like shit but you're forced to use it because otherwise
| some senior vice president would have to admit he made a bad
| decision 9 years ago. The companies who try hardest to protect
| their trade secrets are exactly those companies with the
| _dumbest secrets_. There 's absolutely no risk to the company
| that their employees will take their competitive advantage to
| some competitor "across the street".
|
| What _actually_ happens is that the company uses this as a
| prison fence to keep their employees from being able to leave
| when they treat them like shit.
|
| > If a company is paying you, they own what you create on
| company time and company equipment
|
| You're misrepresenting what those clauses say. Those clauses
| actually say "literally anything you ever do from the time of
| signing this document until the time you quit, we own, if we
| want it." If you draw an idea for a new fusion reactor on the
| back of a napkin late one night in a bar, your company now owns
| all rights to that design, and you are never allowed to do
| anything with it, ever. Yes, that's what they say. Yes, they're
| bullshit. That's why everyone hates them.
| gnicholas wrote:
| The WFH analysis seemed incorrect to me also, as a former
| lawyer. It seems like the advice is geared toward a potential
| employee, not a potential contractor. If you're a contractor,
| it's not true that
|
| > _If you work for a software hub, any SaaS app you build over
| the weekend will belong to the company, regardless of whether
| you do it with company property or not -- as it 's related to
| the company's business._
|
| Also, I'm not sure what to make of this claim:
|
| > _Belonging to the company means everything, not just the IP
| -- the revenue, the code, and the good vibes._
|
| Isn't this assumed, for both employment and contracting? If
| you're writing code for someone, then yes they own the code,
| the associated IP, the revenue they're going to generate with
| it, and the "good vibes". Which one of these things would an
| employee or contractor think he's entitled to?
| BeFlatXIII wrote:
| Restricting the collective progress of humanity so that
| investors can make back their money.
| mordae wrote:
| Restricting the collective progress of humanity so that
| investors can profit.
|
| It's never about making the money back, is it?
| hansvm wrote:
| With respect to the off-hour IP clause nonsense, suppose you've
| signed one of those things but also gotten explicit written
| affirmation from the CEO that they don't give a rat's ass about
| your blog or book contracts or custom search engines or databases
| or contract work or open-source code that couldn't meaningfully
| compete with the company's actual business and that it's just a
| catch-all to ensure that if you do steal proprietary info then
| they're covered, and that they explicitly don't want you to
| actually notify them with all your new "ideas"; does such a
| clause still have any legal teeth you need to be wary of?
| epicureanideal wrote:
| If engineers actually had any leverage I would recommend we all
| collaborate on producing a one page addendum to all employment
| contracts that eliminates common nonsense.
| alkonaut wrote:
| I think I have clauses saying I can't work for competitors and
| that everything I do belongs to the company (not only on company
| time, company equipment, or on order from the company ). I have
| pointed out that the contract means that if I write a bestseller
| novel while employed, my employer owns it, which is obviously
| nonsense.
|
| In reality, I never bothered arguing about these. I trust they
| aren't enforceable and I don't even fear having to pay the legal
| process should the megacorp try to hold the damn thing against
| me. They are _that_ unenforceable.
| kderbyma wrote:
| oh I tore into the owner of a company with those clauses and
| ripped him a new one for about 10 minutes....disgusting
| practice. I refused his offer and told him he should be
| thankful he has anyone desperate enough to work for him. He
| apologized to save face...but didn't seem to care.
| graderjs wrote:
| Grabby abusive employers will likely hate this and
| downvote...But, while I don't have any experience with separate
| NDAs, never given nor received (they've always been baked into
| contracts and never presented a problem, were always scoped and
| not grabby), yet back in the day I turned down over USD 250K in
| multiple contracts that had funky "grabby vague IP provisions",
| or "grabby excessive non-compete provisions" when I was
| contracting and the contracts related to side-projects. Probably
| doesn't sound like much, but it was a lot for global remote at
| the time.
|
| Well, it all worked out well. The personal projects I was working
| on and protecting paid beyond that now...!! Hahah.
| tiku wrote:
| Also had a contract with a customer that stated I could not make
| the same kind of tools for other customers. A bit to vague. Had
| it scrubbed of course.
| [deleted]
| [deleted]
| CrimsonCape wrote:
| I work in an industry that is very much "at-will."
|
| I signed an "Employee Handbook Acknowledgement" which says "I
| understand and agree that the handbook is not a contract of
| employment, or a promise or guarantee of continued employment"
|
| The "handbook" contains statements like "company owns all
| employee creations and IP ,etc etc etc"
|
| It's ambiguous enough to seem to apply to side projects.
|
| What is your opinion of this? Sounds like they want their cake
| and to eat it, I can't see how this is legally enforceable.
| coderintherye wrote:
| Ancillary, but I'll add to be careful with contracts around
| purchasing large building items, specifically in my case
| referring to SteelMaster buildings.
|
| They will sell you on something saying they will deliver it and a
| truck is coming through your area soon, etc., then the sales guy
| will call at dinner time and say oh by they way your delivery is
| ready to ship out we just need you to sign something real quick
| and you're good to go. Then after you sign they will point to a
| clause in the contract that says they are not actually
| responsible for delivery and they won't deliver and you have to
| actually come pick it up. It's essentially a scam, and I'm unsure
| how they stay in business that way (I suppose people who work
| with them just know that's the deal and go into it knowing that),
| but it's one of those things that is a hard lesson to learn for
| having quickly signed something without fully reading it.
| e40 wrote:
| Lots of complaints here:
|
| https://www.bbb.org/us/va/virginia-beach/profile/modular-bui...
|
| Didn't see the particular one you mentioned. It is amazing
| companies like this can get away with so much crap.
| smeej wrote:
| Also verify that anything you're signing when you leave matches
| what you signed when you were hired.
|
| I recently left a company where, when I was hired, I had agreed
| in "Appendix C" not to recruit any of their employees away from
| them for a period of 12 months after separation. When I actually
| separated after more than two years, the "Appendix C" they wanted
| me to sign and presented as the one I had agreed to at hire now
| said 24 months. I told them I was happy to stand by my original
| agreement of 12 months, but I had no incentive to extend to 24
| and would not be doing so. They sent me one with the right number
| and I signed.
|
| Their story was that, in the two years since I'd signed, they
| changed Appendix C and had "accidentally" given me the one that
| pertained to people who had been hired after me under the revised
| terms. I'm willing to give them the benefit of the doubt, because
| why believe people are malicious when they could just as well be
| careless?
| matheusmoreira wrote:
| > I'm willing to give them the benefit of the doubt, because
| why believe people are malicious when they could just as well
| be careless?
|
| Funny how their "carelessness" always seems to benefit them at
| our expense.
| tpxl wrote:
| > because why believe people are malicious when they could just
| as well be careless?
|
| When your job is to be careful, being careless is nothing but
| malicious.
| Karunamon wrote:
| Everyone's job is to be careful.
| smeej wrote:
| I'm sure the person who actually sent me the form was some
| low-level functionary. All I did was say the equivalent of,
| "Hey, this isn't the right form," and he went back to his
| supervisors and got the right one.
|
| I sincerely don't think there was malice involved, certainly
| not at his level, so I just treated it like that.
| lazyweb wrote:
| I'd tend to agree, but then again, there's so many people who
| are just bad at their job. Attention to detail is a skill
| which many do not care to sharpen.
| nhchris wrote:
| Why would you need to sign anything when you leave?
| anticensor wrote:
| Things like "we have all the debts settled and are good to
| part ways" are OK IMO.
| smeej wrote:
| I agreed to when I was hired. It was a basic summary doc:
| I've returned everything that isn't mine. I haven't kept
| records of things I'm not allowed to keep. I'm not going to
| poach your customers or employees (for 12 months, which was
| the part they tried to change to 24).
| jrib wrote:
| > why believe people are malicious when they could just as well
| be careless?
|
| For those who like named things:
| https://en.wikipedia.org/wiki/Hanlon%27s_razor
| eschneider wrote:
| Yeah...when I left a job in 2021, HR presented me with a bunch
| of new agreements that they wanted me to sign. I explained to
| them that it just didn't work that way.
| jrockway wrote:
| With enough compensation it could work. I'd sign "we'll give
| you $5M to not work for 1 year." Stream casual games on
| Twitch for a year :)
| mytailorisrich wrote:
| It works both ways. Maybe you cross a term you don't like in
| the employment contract before returning it to them signed and
| they never notice...
|
| It happens.
| nly wrote:
| Since when do you sign anything when you leave a job?
|
| Weird.
| phphphphp wrote:
| I can believe that they're careless and used the wrong copy of
| a document but I'm not sure I understand why you're signing an
| agreement like that on exit: you've signed it on _hiring_ so
| that regardless of the outcome of your employment, you 're
| bound to the anti-poach. The only reason I can think that
| they'd ask you to sign the agreement again on exit is that they
| _wanted_ to bind you into something new -- what explanation did
| they give?
| cillian64 wrote:
| Often a company will offer severance more generous than they
| are contractually/legally obliged to in exchange for the
| leaver signing some extra restrictions beyond what was in the
| original employment contract.
| cj wrote:
| > The only reason I can think that they'd ask you to sign the
| agreement again on exit is that they wanted to bind you into
| something new
|
| In the Clerky boilerplate employment docs, used by many YC
| companies, the employment agreement contains a Termination
| Certificate along with a clause that says something like
| "upon leaving the company you agree to sign the Termination
| Certificate in the appendix".
|
| So technically, in the case of Clerky's boilerplate docs, you
| agree to sign the termination form before employment even
| begins.
|
| FWIW the termination certificate I'm thinking of is a very
| simple 1 page agreement basically just acknowledging to the
| company that you have returned all company IP, hardware, etc
| to the company and agree to continue to abide by the original
| employment agreement. It doesn't really add any additional
| obligations.
|
| I suppose the benefit to the company is just a reconfirmation
| that you are aware of the terms of the original agreement and
| that you've followed through with basic duties such as
| returning confidential data, hardware, etc to the company.
|
| That said, many employers have additional severance
| agreements that can add lots of additional expectations such
| as non-disparagement clauses, but that's typically only done
| in exchange for additional severance the the company isn't
| legally obligated to provide you (in which case you can
| absolutely say you won't sign the agreement if you want to
| forgo the severance payment)
| smeej wrote:
| Yeah, this was the situation, that I had agreed when I was
| hired to sign the agreement when I left. The issue was just
| that the summary of what I "had agreed to" when I was hired
| that was presented in the termination agreement wasn't
| actually what I had agreed to when I was hired.
|
| I was leaving of my own accord, so no severance involved,
| which was why I told them I was happy to stand by the terms
| I'd already agreed to, including signing the termination
| agreement, but I wouldn't be signing a document that
| contained _new_ terms.
| BurningFrog wrote:
| I guess it's a reminder, so you can't claim you forgot about
| it.
|
| Some wrinkle of "the law" probably works that way?
| Ensorceled wrote:
| > I guess it's a reminder
|
| I would happily sign a 1 page document that said, "I
| acknowledge that I have been reminded of my obligations
| under the document signed April 1, 2004 and been provided
| with paper copies of said agreement."
| bbarnett wrote:
| I probably wouldn't be happy, because what? Are we
| children?
|
| Part of the issue is that lawyers get too free of a hand
| sometimes. We signed, agreed, that part is over.
|
| Frankly I have never attended an "exit interview", and
| never will.
|
| That said, if someone want a reminder sign, as you say,
| I'd expect the corp to sign one too, and give me a copy,
| as well.
|
| When signing contract between two entities, neither side
| is special.
| dilyevsky wrote:
| Easiest way to do this is to not sign anything unless it
| involves extra pay. I've politely refused HR's request to re-
| sign bunch of documents before when leaving - I didn't feel
| like digging through them or paying a lawyer and they had zero
| leverage
| jrockway wrote:
| I don't even politely reply. At my last job, HR sent me a
| "contract" offering $1 in exchange for agreeing not to work
| in the industry for 1 year. I archived their email and never
| spoke to them again :)
|
| It would really depend on the job, of course. I didn't really
| care about that one, and didn't see myself ever wanting to
| work with that founder again, so I didn't make any effort to
| be "nice" in any way. If I ever left my current job, I would
| make sure to stay on the best of terms. I would be annoyed if
| they paid me $1 to not work for a year, but I also know they
| would never ask for that.
| thwayunion wrote:
| I've never refused, but I do always outline the (usually low
| four figure) cost in time and legal expenses required to
| review the contract. I close by explaining that I cannot in
| good faith enter into an ostensibly binding contract without
| some form of consideration from my counter-party because such
| a contract would be difficult to enforce in any case.
|
| HR never knows what to do and usually just never gets around
| to replying to the email.
| smeej wrote:
| I had signed a contract at hire saying I would sign the
| separation agreement when I left.
|
| I didn't have any issue with the agreement I had already
| made. I just wasn't willing to change it as I was voluntarily
| leaving and they weren't offering me anything to change the
| terms.
|
| I'm not even 100% sure I would have noticed it except that my
| new employer required disclosure of any restrictions I had,
| so I disclosed the 12-month non-recruit from the previous
| company. It was fresh to mind.
|
| The two companies are in the same general industry, but do
| not compete with each other.
| winReInstall wrote:
| Im just not made for this world, how and were can i outsource
| this ability to decipher legalesee somone willing to fix this for
| me for money, without exceeding the value gained?
| jmugan wrote:
| Everybody talks like they have a lawyer just sitting outside on
| their patio and all they have to do is give them a couple hundred
| bucks to look over a document here and there. How does one find a
| lawyer that will work piecemeal like that?
| dgb23 wrote:
| Most are teams right? And they go through stuff in bulk just
| like everyone else?
| dustingetz wrote:
| https://www.upcounsel.com/, "working piecemeal like that" is
| exactly what most lawyers do
| jmugan wrote:
| Yeah, this is what I was looking for. In the past, Google
| searches have showed up with nothing. There wasn't a good way
| to hire someone for a small amount of work. Bookmarked!
| seemyvest wrote:
| Why is the _absence_ of a vesting period (for turning turning
| options to shares) a red flag?
| streblo wrote:
| You should sign what your trusted legal representation recommends
| you sign. Many of these situations are more nuanced than an
| internet blogger looking for clicks is going to make them out to
| be.
|
| And yes, if you're making a 6-7 figure decision (which you often
| are when you sign an employment agreement as a software
| engineer), you should at least have an employment attorney give
| it a look through.
| JoelMcCracken wrote:
| I mean, real talk: every time I ever objected to something like
| that, they always said something like: "oh, we don't care what
| you do in your off time. You can always e.g. ask for an exemption
| for specific open source work later", and "its very unusual for
| us to change this, we've never had anyone ask for this kind of
| thing in the past".
|
| If I _had_ followed this advice, I would have missed out on one
| of the best jobs I ever had. So, just YMMV.
| OkayPhysicist wrote:
| "Well in that case, it shouldn't be a big deal to just strike
| that clause, right? Here, we'll even scribble in a little line
| here confirming that the company does, in fact, own the rights
| to the software I write FOR you, as part of our employment
| relationship".
| barking_biscuit wrote:
| My worst job hunting experience was going through a slimy
| recruiter and eventually receiving an offer from a company I was
| initially excited to work at until I read the absolutely bizarre
| and overbearing contract and tried for two weeks to tell them to
| just take all the weird, nonsensical stuff out and I would sign
| and eventually they pulled the offer.
|
| iirc one of the clauses stated that I would make myself available
| to the employer to perform work for them on an as needed basis in
| the three months after quitting the job but the amount of work
| over that three months would never exceed 2 weeks in total blah
| blah blah.
|
| Another one was something like agreeing make myself available to
| participate in legal disputes etc.
|
| I asked them about examples of when these clauses had been
| enforced and what did that look like in practice etc? They
| remarked the first one was mostly done after hours etc. I just
| couldn't fathom why the heck any old regular engineer would sign
| off on a clause like that, but was told that "everyone signs it
| and we're not changing it".
|
| Knowing I had the legal right to get any employment contract
| reviewed by a lawyer, I did exactly that. Good move indeed. The
| clauses were bad enough they tripped my BS meter, but the lawyer
| pointed out further BS in some of the vagueness of the wording. I
| think one example was the clause stating you had to make yourself
| available to the employer for work on an as needed basis after
| leaving the job had a sentence indicating that if you needed to
| travel you would bear the cost and/or there was something about a
| rate or amount of money that just was totally unspecified. She
| also rightly pointed out if you had another full time job you had
| just signed a contract for, you couldn't execute both contracts
| without being in violation of at least one of them and if the
| split with ths whacko employer was not amicable then they could
| absolutely have you over a barrel.
|
| I got my lawyer to tell them to remove those things, and that's
| when they pulled the offer. It was a bit of a shock and quite
| upsetting to me at the time. During that phone conversation with
| the recruiter where he told me they were pulling the offer he
| revealed that a previous employee had stolen the source code and
| tried to set up a competing product and wound up in a legal
| dispute with the company, so the fact that I was "already getting
| lawyers involved" was a "red flag" to them. If you're paying
| careful attention you'll notice the absolutely circular logic of
| that absurd reasoning!!!! Anyway that at least explained sme of
| the weird, nonsensical, heavily defensive clauses, though not all
| of it.
|
| Anyway I dodged an absolute bullet on that one.
| teeray wrote:
| Is it worth drawing up a standard rider for employment
| agreements? Stuff like "I own stuff that I create on my own time
| and with my own equipment" would be in there along with voiding
| non-compete clauses. Also, adding protections to minimum time off
| per year in the face of companies doing the "unlimited PTO"
| trick.
|
| Then it becomes an exchange of paper rather than sitting there
| with a highlighter handing it back and forth between, you, the
| recruiter, HR, and legal. I sign your contract, you sign my rider
| with everything I care about.
| wirthjason wrote:
| Do non-competes include money? The ones I've seen include your
| salary for that period of time. It sounds fair. You ban the
| employee from job prospects but compensate them in pay. Maybe
| this varies by industry, geography, etc.
| j33zusjuice wrote:
| No, not always. In my state, they have to compensate you with
| some minimum amount. I don't know what that is, but based on my
| current contract, my guess is that it's the equivalent of one
| week of pay.
|
| _(I'm fine with it because it's a small, and not particularly
| interesting, industry. Plus, I'm in a DevOps role: none of our
| five or ten competitors are going give me a bag to have me
| build CI /CD pipelines.)_
| ozim wrote:
| Dilbert strip that is there - had that happen. I dropped out of
| recruitment because they wanted to me to sign NDA. Well they were
| also not having top salary but I would go through.
| trentnix wrote:
| From the article:
|
| > _To be honest, I always assume good faith from people who offer
| me to sign some documents_
|
| Sure. And most people asking you to sign documents are doing so
| in good faith. But the contents of the documents themselves
| overwhelmingly bias toward the interests of the organization who
| wrote the contract.
|
| Additionally, while the party asking you to sign may be doing it
| in good faith, they may not be the ones who end up pursuing
| enforcement. A contract should be evaluated based on its contents
| and never based on your trust of the individuals you are
| negotiating with.
| oytis wrote:
| > Anything you do with the company property, e.g., work computer,
| automatically belongs to the company, even if you do it on the
| weekends.
|
| That doesn't sound unacceptable to me. It's not that I'm that
| strict about e.g. reading personal emails etc. on my work
| computer, but if it's some side hustle, be it for money or for
| fun, I think it's honest to take your personal machine for that.
| amelius wrote:
| Computers are just office equipment, just like pens.
|
| If I gave you a pen and you wrote some story with it, then
| could I claim the rights to that story? I think not.
| [deleted]
| rintakumpu wrote:
| Exactly this, and they are ubiquitous. With software I think
| it might be a slightly different matter as the company mighy
| have access to software you couldn't otherwise afford. But
| it's a red flag anyways ... why would you ever want to work
| for someone who'd want to claim ownership to something that
| is clearly not theirs?
| wepple wrote:
| I disagree. A vanilla MacBook might be a bit like a pen, but
| if that MacBook is loaded with a bunch of proprietary or
| licensed software, I can see why an organization wouldn't
| want it being used for financial gain outside of the
| organization. Perhaps they don't explicitly "lose" anything,
| but it's their investment to have returns on.
|
| If a laptop is like a pen, what about a high end graphics
| workstation? What about a small server? Internet bandwidth is
| a cheap commodity, can I run my site from work? Electricity
| is basically free (I charge my personal scooter at work),
| what about a small Bitcoin miner?
| II2II wrote:
| So you're the one who keeps taking the company's pens ...
|
| More seriously though, there are frequently restictions of
| the use of office equipment (or business equipment in
| general). Businesses will often overlook it if it is not a
| problem, say if you need a photocopy of a rental contract.
| They have the discretion to say no if the privilege is being
| abused, say if you started printing hundreds of pages a month
| for personal use. The misuse of pens is rarely seen as an
| issue since they hold little intrinsic value and are
| routinely replaced.
|
| Should they be able to claim the rights to something you
| produced with their equipment? In most cases, no. I'm not
| going to say in all cases no since there is always going to
| be someone who pushes the limits beyond reason. (Say a person
| develops a piece of software with a company computer to sell
| on the side. Can that be construed as the business indirectly
| financing the development of the software by providing
| hardware and/or software tools?)
|
| In general, it is always a good idea to do personal stuff
| with personal equipment and business stuff with equipment
| supplied by the business. I'm sure the coworkers who are
| searching for the missing pens will thank you for doing so.
| oytis wrote:
| That's why they write it in contracts explicitly I guess?
| amelius wrote:
| Not everything in contracts is legally binding.
|
| If I write code using some company computer, then the most
| they could do is charge me for the damages, i.e. the power
| used or in the worst case I would have to replace the
| computer.
| oytis wrote:
| Yeah, I'm not competent there. My impression is it should
| be enforceable, at least in the U.S., but I'd contact a
| lawyer if I wanted to know for sure.
| kaashif wrote:
| I don't know whether you could or couldn't. But if I entered
| into such a contract, I'd obviously use a different pen, it's
| not that hard.
|
| Is anyone really running their side businesses from their
| work laptops? That seems crazy to me.
| 7steps2much wrote:
| If you make that pen available to me under these conditions?
| Sure.
|
| If you "just give" me something without any conditions then
| no, you could definitely not claim that story. But if you
| make that pen, your property, available to me explicitly only
| for work and nothing else?
|
| It's your property, not mine. I only have whatever rights you
| grant me to it.
| amelius wrote:
| Let's make this example a little more extreme to show how
| nonsensical a company claim is on stuff they did not create
| (or pay for).
|
| If I used the company computer to access a dating-website,
| then could the company claim ownership of my firstborn
| child, if that was in the contract?
| riskable wrote:
| > If I used the company computer to access a dating-
| website, then could the company claim ownership of my
| firstborn child
|
| No, but first kiss is definitely on the table.
| nhchris wrote:
| > If you make that pen available to me under these
| conditions? Sure.
|
| Let's leave aside whether the law (in whatever country)
| permits such a one-sided contract, and ask - _should_ it
| permit it? There are plenty of contract terms that are
| illegal (i.e. not backed by law), such as usury [1] or
| various anti-competitive practices, because their
| enforcement is seen as either unfair, or a detriment to
| society, regardless of whether they were entered freely.
| Contracts are not and should not be above the law.
|
| [1] https://en.wikipedia.org/wiki/Usury#Usury_law
| VeninVidiaVicii wrote:
| Only if you sign the contract!
| munchler wrote:
| You don't get the pen without signing the contract.
| VeninVidiaVicii wrote:
| You can't sign the contract without the pen.
| eloff wrote:
| Strangely it works this way though. It doesn't make sense. In
| my current job I refused company equipment, and insisted on
| using my own. I pay for my own software too.
|
| Safer that way.
| rubyfan wrote:
| If you explicitly included a contract that stated how the pen
| was to be used and the ramifications before my acceptance of
| your pen then yes.
|
| Companies do include policies about how their equipment is to
| be used and for what and they do include how they think about
| ownership usually in your employment agreement or principles
| of employment policies. To write those off because "hey it's
| only a generic piece of equipment" is perilous.
|
| I suspect how you think about the analogy changes if you
| write the story on company letterhead or if you used the
| company car for your catering side hustle on the weekends.
| BeFlatXIII wrote:
| That last paragraph of yours is key the your whole post.
| It's a good illustration of how a large enough difference
| in degree becomes a difference in kind.
| amelius wrote:
| If you use the company car for a side hustle in catering,
| then that perhaps gives the company the right to fire you
| or charge you for damages. However, they do not get to
| claim any intellectual property (recipes you invented for
| your catering side-job).
| jrockway wrote:
| I agree with that. In the pen example, they should bill
| you for the wear and tear on the pen (ball bearings and
| ink aren't free). In the computer example, same deal.
| Figure out what a flash memory erase cycle is worth,
| figure out what bringing the CPU out of its lowest power
| state costs per minute, figure out how many of each were
| used, and send an invoice!
| etothepii wrote:
| This is usually a tax thing.
|
| We have a policy that states, "company equipment can not be
| used for personal use". As without this company equipment
| can not be tax deductible. However, in the UK at least, it
| is a matter of economic policy whether a company makes any
| effort to in-force.
|
| Thus I hit on what a I thought was a neat solution. Which
| was to deem it a sackable offence to expend any resource
| whatsoever including time or materials to identify if
| company property had been so used.
| amelius wrote:
| It's not that simple. The law recognizes that when signing
| a contract there is a power-imbalance between employer and
| employee. It would be different if the contract was written
| by the employee and signed by the employer.
| tjoff wrote:
| So now I have to lug around two of everything (laptop, phone
| etc) just because I might want to do something unrelated to
| work?
|
| It is completely unreasonable as a blanket statement.
| pc86 wrote:
| Yes.
|
| It's not your equipment, you didn't buy it, you can't just do
| whatever you want with it. It's like being given a company
| car but going on a 3,000-mile roadtrip "because why should I
| have my own car if you gave me this one?"
|
| It's not remotely unreasonable to expect someone not to use
| their employer's equipment to make money on the side,
| especially for something like a laptop which over the course
| of what a developer earns in 4-5 years is basically nothing.
| wepple wrote:
| > It is completely unreasonable as a blanket statement.
|
| I personally find your position unreasonable: that you should
| be entitled to use property that is not yours how you see
| fit, because it's more convenient to you.
|
| In reality, any sane organization wouldn't punish you for
| reading the news on your work computer, but to assert you
| should be given access seems unreasonable to me. You're paid
| to do a job and they provide some tools for you to use to
| complete that job.
| twobitshifter wrote:
| Really you should use a dumb terminal and keep corporate and
| personal materials on separate machines.
| notpushkin wrote:
| Why not just buy a laptop and ask your employer to pay its
| depreciation? It's way easier for both parties I think.
| NikolaNovak wrote:
| Three.
|
| My employer's laptop, my current client's laptop (I'm in a
| consulting branch of a large corporation), and my personal
| laptop. Pre-Covid I lugged them on airplanes every week.
|
| I enjoy HN for many reasons, one of which is to encounter
| approaches and perspectives that I would not ever even
| remotely consider. I would not use my employer's laptop for
| personal, let alone a side-gig purpose, with a 10 foot pole.
| It's not mine, I have no control of it, I have no visibility
| into what is being monitored nor how it is used, where the
| data goes, what I should install on it, etc. Employer has
| full legal right to request it back this evening, do whatever
| forensic examinations they want, and have interesting
| questions or claims on anything they find.
|
| Yes laptop is a tool, but it's such a complex multipurpose
| massively powerful dangerous tool, that even if we try to
| make a claim "Pen and Laptop are legally the same as a
| employer-provided-tool", I find the surface area of a Pen
| minuscule compared to the surface area of a laptop and
| everything I can do with it / put on it.
| wepple wrote:
| Big +1 on that. I assume a model where my work laptop
| screen is being directly mirrored into a room with 100
| people watching it 24x7, basically. Entirely impossible,
| but every organization has _some_ level of monitoring
| between zero and my theoretical scenario, so I carry a
| personal device and completely sidestep the entire issue.
| tjoff wrote:
| And I've setup everything from scratch. There is no
| software on there that I wouldn't install on my personal
| machine. If anyone wanted access to it they'd have to ask
| me for a password noone else knows.
|
| Yes, it is perfectly reasonable and in many cases prudent
| to not use your companies laptop for home-use. So you may
| chose not to do it.
|
| That the company would own everything you did on it is
| still completely unreasonable.
| NikolaNovak wrote:
| Not to negate your point, but a related pondering : I
| would assume that the Venn diagram of companies that make
| claim on property created on their laptops ; vs companies
| that let you install fresh OS and software from image and
| repository of your choice and access work network / store
| proprietary data ; is practically zero.
|
| (If you did not install fresh OS from image of your
| choice, then you did not install software from scratch
| and should not be confident what's in your work laptop
| and what it's doing / monitoring)
| david2ndaccount wrote:
| If your company ever ends up in legal hot water, you'll be
| glad you kept a physical separation between your personal
| affairs and work equipment. See for example the Enron emails,
| which were made public as part of discovery and include
| thousands of personal emails from people who used their work
| email as personal email.
| j01 wrote:
| I think it's fine to require that you cannot use work equipment
| for personal projects, but claiming ownership of a project
| written on the weekend on a company laptop isn't the solution.
| Turing_Machine wrote:
| Another wrinkle on "company property" you have to watch out
| for:
|
| When I was in grad school, a professor in my department left to
| take a job at another university.
|
| The beancounters demanded the return of the department-issued
| computer he'd had...in 1985.
|
| Of course, that was many, many computers ago, and what almost
| certainly happened was that he'd transferred the machine to a
| grad student or whatever when he got a new one, and they'd just
| lost the record of the transfer (or never entered it in the
| first place). Still, he had to go through a week or so of back
| and forth before they were convinced that a) it was
| unreasonable to expect him to account for a computer from
| decades ago and b) even if he did still have the 1985 computer,
| it wouldn't be worth anything like their book value any more.
| They actually wanted to charge him the original 1985 price for
| the "missing" computer!
|
| I guess the moral there is to keep your own careful log of what
| happens to any company property that's been issued to you.
| buildbot wrote:
| When I worked in tech support at my University, we 100% knew
| we were never getting it back but had to ask like once a year
| anyway because government. Public money means excessive
| tracing for any asset!!
| donatj wrote:
| > Another clause to watch out for [...] is the "I agree not to
| cause any other employees to get hired," which prohibits you from
| hiring directly or allowing any current employees to get hired by
| the company to which you went. This clause protects the company
| from the unlikely event of a manager leaving and taking their
| team with them.
|
| I had a previous employer threaten to sue me for this after a
| couple friends followed me to a new job on their own accord and
| despite having signed nothing of the sort. One strongly worded
| letter from a lawyer though and they dropped the whole affair.
| j33zusjuice wrote:
| I wonder how these hold up, and what the clause "I agree not to
| cause any other employees to get hired" means in a legal sense.
| Like, if you and I work at Company A, and you go to Company B
| and I want to go there because it's amazing. If you recommend
| me, is that causal? I have to interview and all that still.
|
| If you leave for a managerial role, can you hire me if I make
| first contact with your new company? That seems causal, but
| also easily circumvented.
| mkl95 wrote:
| Noncompetes are mostly bullshit in the EU. Startup lawyers know
| the CEO has read too much SV literature so they write down that
| clause to make them happy.
|
| "Everything belongs to your employer" clauses seem scarier to me
| although I have never seen them enforced either. But if you are
| making your employees sign those you should know it will likely
| kill their motivation to work on side projects, which will make
| them less competitive and motivated at work.
| Asooka wrote:
| Oh for sure. I just keep any ideas I have in my head and not
| tell them to anyone (inside or outside of the company).
| slaymaker1907 wrote:
| I can understand why companies want things under a work for hire
| contract. If work isn't under a work for hire contract, you can
| just revoke their rights to it after 35 years due to how US
| copyright law works.
| kloch wrote:
| The author ignores an important part of the negotiation equation
| - are you being adequately compensated for the imposed
| limitations?
|
| For example a one year non-compete after separation might be
| unreasonable by itself, but coupled with one year of full
| severance pay is a different story, although there is still the
| "what am I supposed to do with my time?" issue.
|
| If you are a founder/early employee with significant equity then
| a non-compete clause when being acquired will likely be
| acceptable to you.
| chasing wrote:
| Treat contract negotiation as a trial run for your future
| relationship: Do they try to slip nasty stuff in there? Do they
| do stupid shit? Do they refuse to answer questions clearly? Is it
| a hassle trying to get them to make modifications? Are things
| vague, open to too much interpretation, or missing key
| information?
|
| How someone behaves during contract negotiations is an indicator
| of how they'll behave generally. If you can't start building that
| trust right out of the gate... Red flag. Even if they're not
| trying to be devious and are simply being naive or sloppy.
| toss1 wrote:
| Exactly!
|
| It has gotten to the point where I take any contract put in
| front of me as a statement of how the other party does
| business. If they contract is all one-sided to their benefit
| and/or has crazy escape hatches for them and/or penalties for
| my side, it's best to just walk away, even if it costs a lot.
| I've tried to negotiate such clauses into something reasonable,
| and it is just a waste of time. They've told you how they do
| business the first time -- believe them the first time.
|
| When I write contracts, I make sure that they are mutual, down
| to the structure of every sentence and paragraph. E.g., "Both
| parties shall treat confidential information with the same care
| as their own confidential information..." in an NDA for
| prospective joint development. I'm not the only one, and I've
| seen that sort of approach many times ('tho less often that I'd
| like). Those are the kind of people/companies I want to do
| business with.
|
| Avoid the former like the plague that they are. You'll save
| _yourself_ a lot of trouble.
| johndhi wrote:
| What? Every click wrap agreement online is very one sided.
| You think you're saving yourself trouble by not using any
| online software?
| matheusmoreira wrote:
| The thing about online service agreements is they have
| pretty much zero leverage against you. So what if you
| violate their little terms of service? Worst they can do is
| ban your account. Their "take it or leave it" bullshit
| holds no water.
| pixl97 wrote:
| This depends on the nature of the transactions you're
| performing.
|
| For example, play that game with Paypal.... whoopsie,
| they're holding a quarter million of your cash and aren't
| going to let it go for six months. Of course where this
| much is at stake reading those agreements is _very_
| important.
|
| But take a middle ground. You join a forum and make a
| side business where you're selling some kind of product
| to their members. This gets more problematic very fast.
| It can be nearly impossible to pull your business out of
| the forum it's embedded in. And this is the exact kind of
| behaviors we've seen out of large companies like
| Facebook. They can choose how they please to access
| 'their' users.
| whatshisface wrote:
| They are still right about EULAs. The terms and style of
| negotiation are "we do what we want and change things when
| we feel like it, and you check accept or stop using the
| software," and guess what that implies about using the
| software - they do what they want and change stuff when
| they feel like it and you accept it or stop using the
| software.
|
| Contrast that to the open source pattern of making the
| license a header in the source files. You interact with the
| license by making common sense assumptions unless you need
| to know a detail, in which case you open a source file.
| Likewise you interact with the software by running on
| common assumptions unless you need to know a detail, in
| which case you open a source file.
| johndhi wrote:
| I agree that, from the user perspective, I'd prefer if
| all of the software terms and EULAs I sign online were
| more favorable to me.
|
| But I think it's a major overstatement to say you'll save
| yourself a headache by not agreeing to one-sided terms.
| They are literally everywhere. This very website we're
| posting on right includes these terms in its terms of
| service:
|
| We reserve the right, at our sole discretion, to change
| or modify portions of these Terms of Use at any time.
|
| YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST Y
| COMBINATOR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR
| CLASS MEMBER
|
| Y Combinator reserves the right to modify or discontinue,
| temporarily or permanently, the Site (or any part
| thereof) with or without notice.
|
| Y Combinator reserves the right to investigate and take
| appropriate legal action against anyone who, in Y
| Combinator's sole discretion, violates this provision,
| including without limitation, removing the offending
| content from the Site, suspending or terminating the
| account of such violators and reporting you to the law
| enforcement authorities.
| whatshisface wrote:
| > _They 've told you how they do business the first time
| -- believe them the first time._
|
| I'm agreeing more with that than the idea that there are
| no good nonmutual commercial interactions.
| nerdponx wrote:
| Indeed. This is the classic hole in the economics
| argument about market forces. You can easily set up a
| game theory model of the prisoner's dilemma with many
| players, in which the payoff from deviating is so small
| that "everyone colludes" becomes a stable equilibrium.
| marcus0x62 wrote:
| I'd be a little more worried about HN's terms and
| conditions if I had to pay to use the site. There's a
| world of difference between someone (or a company) who is
| providing a free service attempting to shield themselves
| from expensive litigation and generally insisting the
| free service be as hassle-free for them to run as
| possible and a a company charging me money for a product
| or service and putting these kinds of one-sided terms in
| a EULA.
| npc12345 wrote:
| [dead]
| metalspot wrote:
| don't bother with a cell phone either. the world is full of
| stupid contracts with unenforceable terms. sign it without
| reading and save yourself the headache.
| AlbertCory wrote:
| You can generalize that to:
|
| _The way they treat you when you 're interviewing is the best
| they will ever treat you._
|
| Are they rude? Ditch 'em.
|
| Do they stare at your resume like it's a pile of dog doo? Ditch
| 'em.
|
| Do their interviewers interrupt you while you're answering
| their question, to ask you another one? Ditch 'em.
|
| Do they ignore your personal needs (water, bathroom, etc.)?
| Ditch 'em.
|
| (and as you said, do they give you lengthy contracts to sign
| with onerous provisions? You know this by now.)
| dustingetz wrote:
| There's another side to this: corporations are not people, your
| champion may be a person but when they're gone next year your
| contract is with the corporation, and the only "behavior" you
| can expect is for it to optimize future cashflows. Do you want
| the money or not?
| jackson1442 wrote:
| Strongly agree, noticed this when signing lease agreements.
| Currently leasing from a place with tons of one-sided rules,
| fines, surprise fees, etc, and they've been awful to deal with
| overall.
|
| I signed another lease recently with more sane rules and
| enjoyed living there a lot more than I enjoy living at the
| other place.
| chadash wrote:
| There's this HN obsession with negotiating on non-competes.
| Here's the problem. Say that I work for Acme Corp that makes
| Fancy Widgets for Bridgettes with 11 Digits and I'm hiring a
| software engineer. We put out the offer and give them time to
| respond. They come back saying they would like the offer to be
| $10k higher. No problem... As the hiring manager, I might already
| know that we have $10k leeway, or at the most, I'll have to go
| ask someone a level or two above me.
|
| Another candidate gets an offer and sees the non-compete clause
| (which is the same across all of Acme Corp's 10k employees) and
| asks for that to be removed. As the hiring manager, what do I do?
| My boss leads a division but doesn't have authority to change
| boilerplate contracts. Neither does her boss. So we need to go to
| Legal. But who do I reach out to there? The company's general
| counsel doesn't have time to deal with this. So I guess I start
| emailing around? Who do I go to who actually has the authority to
| change this? It becomes too much of a hassle and I turn candidate
| #2 away. Oh, and by the way, had candidate #2 signed the
| contract, they would have been banned from working for any other
| company whose business is primarily selling Fancy Widgets to
| people named Bridgette who have 11 fingers. It probably wouldn't
| have been an issue anyway.
|
| My point is that people sometimes overthink this. Yes, non-
| competes are bad. I'd argue that they are immoral and certainly
| bad policy. But not every non-compete is created equally and
| sometimes maybe you'd be better off negotiating for other things
| that might be easier to negotiate on and would be more useful
| anyway. If you are a software engineer, it's often unlikely that
| you'd find yourself working for a direct competitor anyway.
| kevstev wrote:
| Well lets say you work at TechCompany. TechCompany makes most
| of its revenue off of ads, but it has a bunch of side bets in
| classifieds, AI, self driving cars (or so its rumored), virtual
| reality, chat, even some finance tools. Now you want to go to
| NewTechCompany to go work on something there. But $TechCompany
| says you can't do that, they are a competitor, you can't work
| there for 12 months like your noncompete says! And you reply
| well no, I worked on search engine stuff here, I will be
| working on big data tools there, its completely different! And
| TechCompany just says- "No, they are also a tech company. You
| can't work there. On anything."
|
| So you think about this for a minute, and go back out and go
| get an offer from an ad company (in the digital space). And
| again TechCompany comes back and says "No you cant work there,
| they are a competitor! We do ads too!" And you come back and
| are a little pissed now, and say "I have never worked on ads in
| your company before, I have no idea what that is all about, I
| don't have access to any of that stuff! I am going and stuff
| it!"
|
| TechCompany now comes back and says "well we have an army of
| lawyers, we have already sent a letter to their legal
| department saying we intend to sue." This ad company is small
| and does business with TechCompany, and doesn't want to upset
| them or get into a long and expensive legal battle. They
| rescind your offer...
|
| You now look at what else is out there... healthcare? probably
| not... they have some forays into that too. Insurance? ok
| maybe. A consulting firm? The options are just... small.
|
| This by the way is not some completely fictional scenario.
| These agreements are meant to intimidate you and make it more
| difficult for you to leave. I had an egregious noncompete put
| on me, that essentially said I could not work in any business
| the company was involved in (which was ever expanding- though
| in the financial space), and at first they wanted it to be a
| fixed payment for not working, which while the number was
| equivalent to about 6 months of my base salary (which was only
| half of my total compensation roughly), I knew people at that
| firm that had been there 15 years. That number they signed was
| now paltry. They relented and said it could be based on base
| salary for that year, but that was it. I swallowed the bullet
| because I liked the company otherwise and the pay was great.
| Later I renegotiated my comp toward my base salary to make sure
| I was taken care of if I left.
|
| Anyway, the specific details in my situation don't really
| matter. My wife has also been bent over by a non-compete in a
| similar fashion. You need to read this thing thinking about the
| worst case possible scenario if the company wants to bend you
| over, and nothing less. Taking these lightly puts you at risk
| of a world of hurt. My wife had to step back and take shitty
| jobs for 2 years because of a bad noncompete (for a place that
| she worked at for 4 months before she was let go after a re-
| org) and her compensation pretty much halved during that time-
| we talked to a lawyer, he said yeah you will probably win in
| the end, but it might take a year, a lot of money, the outcome
| is uncertain, and no one is going to want to touch you while
| the case is ongoing. DO NOT take these lightly.
| [deleted]
| vabank wrote:
| What's wrong with gym contracts?
| bluGill wrote:
| Depends on the type of gym. The cheap ones only can pay the
| bills if most people are paying but not actually going. So they
| have to make it hard to end the contract.
|
| There are a few gyms that don't, but these tend to be based on
| personal training or snall group classes. That personal
| attention means they are more likely to end your contract for
| you if you are not attending as they need a good reputation to
| justify the high price they have to charge everyone.
|
| If you know what your are doing in the gym you don't need the
| services of the more expensive ones, so canceling will be hard.
| _puk wrote:
| Even if it is easy to end the contract (just ask to terminate
| it option), it is quite common that you have to give X months
| notice.
|
| They rely on the fact many members will go less and less each
| month before reviewing and cancelling, so they get paid for
| 5-6 months.
| mxuribe wrote:
| Also, at least in many areas in the U.S., gyms - or more likely
| gym chains - are among the fastest to resort to debt/collection
| agencies....which in the U.S. tend to act very predatory. I
| don't blame orgs for resorting to collection agencies for
| legitimate folks who want to get out of paying, but i know far
| too many people who have been "accidentally" put in the sights
| of these collection agencies, and have had their credit
| negatively impacted. It sucks that businesses have such power
| over citizens and their financial reputation - without as much
| recourse.
| weberer wrote:
| Its only a problem with certain large chains, but they are
| often set up so that they automatically charge you every month
| and it is very hard to cancel. If a gym doesn't accept cash and
| demands you pay by credit card, that's a huge red flag. Also
| check reviews of the gym before you sign up. And of course,
| actually read the contract before signing. They can waive
| certain clauses if you confront them. And if they don't, there
| are plenty of small gyms to chose from.
| kube-system wrote:
| In my experience, they're not hard to cancel as long as you
| cancel in the way that it outlined in the contract.
| adrianmsmith wrote:
| A mate of mine was paying, say, $50/month for his gym, and
| had been doing so for a few years.
|
| When he cancelled he was informed he'd actually been on a
| reduced rate based on an expected 10 year subscription, and
| as he hadn't stayed 10 years, the price had actually been
| $60/month, so he now to pay a one-time fee of $10/month for
| every month he'd been with them, in order to be able to
| cancel.
|
| Or, if he couldn't afford that or didn't want to pay, of
| course he could withdraw his cancellation and keep on paying
| his $50/month fee.
| weberer wrote:
| See also:
|
| https://www.bbb.org/us/tx/austin/profile/gymnasium/planet-
| fi...
| ssnistfajen wrote:
| I thought "gym contract" in the article was an euphemism for
| specific types of employment contracts and was confused when
| nowhere else in the article mentioned anything about gyms.
| technothrasher wrote:
| > Its only a problem with certain large chains
|
| No, many little independent gyms have caught on to the
| behavior too.
| varispeed wrote:
| That's why I prefer business to business type of contract rather
| than employment. Unfortunately in many countries government are
| bribed by big consultancies to limit or even prevent individuals
| from running their own consulting business.
| somecompanyguy wrote:
| after a lifetime of web development [started in 1996], you should
| ask yourself "can i build a full product". if the answer is yes,
| don't sign contracts and start your product. employers don't pay
| what you're worth. you can save them 250k in a 2 week period and
| they won't know you did it and definitely won't pay you like you
| did. they might even toss you to the side thinking "oh my nephew
| makes websites". you might have just increased your client's
| conversion rates by 3% because of an issue on the checkout page
| and when you call to report on it they might say "oh wow that
| must be the advertisement i bought without telling you".
|
| in most cases, its too technical for them to understand. i
| recommend avoiding employers if you're money motivated.
| 1celebreinconnu wrote:
| I wonder how often non-compete clause are actually enforced. If I
| don't tell my employer what my next employer is and don't update
| my linkedin profile, I don't really see how it would actually
| works in practice.
| kube-system wrote:
| In practice, they often only get enforced if you're actually
| stealing customers and disrupting their business.
| Ensorceled wrote:
| Or if your boss _really_ dislikes that you are "disloyal"
| and left the company and uses company resources to pursue a
| vendetta.
| codingdave wrote:
| > the best thing we as engineers can do is be aware of the types
| of contracts we're signing
|
| I'd argue that the best thing we can do is to not just make
| generalizations about what is OK to sign or not. Confidentiality
| agreements and non-competes are fine if they are narrowly
| focused, fair, and your compensation is sufficient to make it
| worth the restrictions. Because that is what a contract really is
| - a balancing act between obligations and limitations put on
| yourself contrasted with benefits (money) given to you in
| exchange.
|
| So an absurd non-compete is fine if they pay me a lot of money
| for it. An confidentiality clause is fine if they pay me a lot of
| money for it.
|
| This becomes critical when looking at all the recent layoffs.
| Most severance packages are exactly this type of contract -
| confidentiality and other restrictions in exchange for your
| severance pay.
|
| Should you sign? Maybe. Maybe the severance pay is worth it. Read
| the contract, understand it, and make a choice.
| tallanvor wrote:
| I agree. My contract says that my employer can choose to
| enforce a non-compete for 12 months after I leave, but if they
| do, they have to pay me during that time. It creates a strong
| incentive for them to not abuse the non-compete.
| claytonjy wrote:
| Are you in finance? That kind of compensated-non-compete
| seems common there, but rare elsewhere.
| thwayunion wrote:
| A garden leave clause is literally required for any
| noncompete contract to be enforceable in MA [1].
| Hilariously, none of the FAANG companies include a garden
| leave clause for MA employees. NB: giving post facto garden
| leave isn't enough to enforce a non-compete; an actual
| clause needs to be in the signed noncompete contract in
| order for the contract to be enforceable.
|
| My employment lawyer friend is fairly certain that if a
| FAANG tried to enforce a noncompete without a garden leave
| clause, they could be sued for triple damages, where the
| damages would certainly include the minimum required garden
| leave, and that if the enforcement attempt resulted in a
| job opportunity being aborted you could probably also
| include the full vesting schedule of your next employment
| contract in the damages (which, again, gets tripled).
|
| [1] M.G.L Chapter 149 Section 24L:
|
| (b) To be valid and enforceable, a noncompetition agreement
| must meet the minimum requirements of paragraphs (i)
| through (viii)...
|
| (vii) The noncompetition agreement shall be supported by a
| garden leave clause or other mutually-agreed upon
| consideration between the employer and the employee,
| provided that such consideration is specified in the
| noncompetition agreement. To constitute a garden leave
| clause within the meaning of this section, the agreement
| must (i) provide for the payment, consistent with the
| requirements for the payment of wages under section 148 of
| chapter 149 of the general laws, on a pro-rata basis during
| the entirety of the restricted period, of at least 50
| percent of the employee's highest annualized base salary
| paid by the employer within the 2 years preceding the
| employee's termination; and (ii) except in the event of a
| breach by the employee, not permit an employer to
| unilaterally discontinue or otherwise fail or refuse to
| make the payments; provided, however, if the restricted
| period has been increased beyond 12 months as a result of
| the employee's breach of a fiduciary duty to the employer
| or the employee has unlawfully taken, physically or
| electronically, property belonging to the employer, the
| employer shall not be required to provide payments to the
| employee during the extension of the restricted period.
| pixl97 wrote:
| Enforceable versus written in a contract are two
| different things.
|
| The question is what is the rate of voluntary compliance
| in what would otherwise be an illegal contract.
| biztos wrote:
| In Germany (and probably much of the EU) that incentive is
| built into the law, as it should be.
|
| I think it's boilerplate in big company contracts there,
| but extremely rarely enforced, because IIRC the amount you
| have to pay is the comp for the job you're blocking.
|
| When I had a contract like that, I occasionally fantasized
| about getting a FAANG job and being paid in full to not
| take it, but in reality that would never happen unless you
| got caught in a spat between rival executives.
| chadash wrote:
| _> non-competes are fine if they are narrowly focused, fair,
| and your compensation is sufficient to make it worth the
| restrictions_
|
| Yes! This is a particularly true for most software engineers. I
| have a friend who is a doctor whose contract says that if
| quits, he can't practice medicine within a 30-mile radius for
| 12 months. His only option would be to move to a different
| area, take a job with a horrible commute for a year or to wait
| it out. On the other hand, as a software engineer, I've never
| been in a situation where my thought is to move to a direct
| competitor. My skillset is broadly applicable to many
| industries, and it wouldn't be strange to do one gig for Home
| Depot, the next one at Google, followed by a role at Tesla.
| swader999 wrote:
| A lot of doctor and vet contracts are like that because they
| are likely to get a large local client following just by
| joining a practise that the practise has spent years
| cultivating.
| riskable wrote:
| There's an easy way to solve this problem without non-
| competes: _Treat your employees better_. Usually by _paying
| them more_.
|
| The entire concept of going to work for someone else is
| that it's supposed to save you a lot of trouble having to
| sell your services on your own/run your own business. If it
| has become so much more profitable for doctors to leave and
| start their own practice then they _should_ be doing that
| because you 're not paying them enough! You're not "making
| good" on your end of the bargain that we offer in civilized
| society.
| NhanH wrote:
| Sure, and if a doctor is good enough, he can just start
| his own practice from the start and never have to sign
| anything since he never join any practice except his own.
|
| That line of reasoning goes both way. If you sign
| something, then it was worth it for you.
| xjlin0 wrote:
| >if a doctor is good enough, he can just start his own
| practice
|
| It depends. Many instruments, such as PET in nuclear
| medicine, cost a lot. One have to work for
| hospitals/networks to help his/her patients with that
| instruments, no matter how good he/her is.
| matheusmoreira wrote:
| > it's supposed to save you a lot of trouble having to
| sell your services on your own/run your own business
|
| Can't stress this enough. Show up, attend to patients as
| scheduled then go home and enjoy life. All the boring
| details are taken care of. It's definitely more
| profitable to start one's own practice but the comfort of
| working at such places should not be underestimated.
| swader999 wrote:
| Not always, a vet practise can have 1-5 million in fixed
| capital costs. Surgery, dental, x ray, blood and so on
| all add up. Sharing admin and vet techs helps too.
| hfifjdghu wrote:
| This perspective completely evades the actual argument
| which was that practices behave this way because they're
| extending access to their client base which is a resource
| they cultivated themselves and which will almost
| certainly yield a following the the new applicant.
| matheusmoreira wrote:
| Complete bullshit. The patients are not "theirs", they
| are not resources to be traded. The doctor is the one
| extending services to the practice. They're the ones who
| benefit from having high quality professionals attending
| to patients. The practice did not cultivate anything, the
| doctors practicing there did. Doctor-patient
| relationships are personal and it is 100% unethical to
| interfere in them with anticompetitive contracts.
| riskable wrote:
| A client base is not an exclusive resource that only the
| employer gets to have. If the doctor started a coffee
| shop and those same clients started going there for their
| coffee would it be the same? Or perhaps _the whole point_
| of such clauses is the very definition of anti-
| competitive behavior.
|
| Also, if the doctor's patients all like him enough to
| switch to his private practice when he leaves then
| _clearly_ they weren 't paying the doctor enough. He was
| worth that many patients!
| swader999 wrote:
| They could pay doc more if they didn't spend any money on
| marketing and retention but that would be a lose lose
| situation, especially as most docs bill money on a per
| visit basis.
| matheusmoreira wrote:
| It's still an anticompetitive clause. The patients don't
| belong to the practice.
| buildbot wrote:
| When my dentist retired his practice they actually sold
| the client list specifically, so I am not sure this is
| legally true. Morally I agree.
| matheusmoreira wrote:
| What exactly is this "client list" that they sold? Names
| and contact information?
| swader999 wrote:
| Yeah, it's generally called good will. Client list,
| client interaction, services, and payments history,
| website, company name. The ability to figure out the best
| clients and continue the relationship with them.
| francisofascii wrote:
| I know a PT who signed on of those. Then left, worked outside
| the agreed radius (but still in the same metro area) , and
| was still sued. He eventually settled.
| b3morales wrote:
| I imagine the lawyers came up with some bull like "well
| _actually_ we meant that the 30-mile radius of your new
| clinic can 't overlap with the 30-mile radius of ours"?
| microtherion wrote:
| Luckily Google does not, to my knowledge, try to have non-
| competes in their contracts, and they would not be
| enforceable in California, otherwise the problem with
| companies their size would be that they "compete" in an
| awfully large number of business areas.
|
| Going from Google to Tesla? Sorry, they're a competitor in
| driving cars. Spotify? They compete in streaming music.
| Microsoft? They compete in search. Apple? They compete in
| cellphones. Telegram Inc? Google does instant messaging.
| Garmin? Google does maps. NCR? Every heard of Google Wallet?
| RaCaS123 wrote:
| (also worth taking into account whether clauses like an absurd
| non-compete are even enforceable...)
| crispyambulance wrote:
| OK, but that's REALLY hard to assess for a normal person on
| their own.
|
| Moreover, it doesn't prevent unreasonable entities from
| having their retained lawyers draft scary letters. Most
| people just sign the boilerplate, hope for the best, and try
| not to poke sticks into wasp nests if they can avoid it.
| DennisP wrote:
| But at software engineer salaries, it's not that expensive
| to get legal advice for this. I did it once, when a company
| I'd worked at for over a decade was bought out, and
| insisted everyone sign onerous contracts including broad IP
| assignment. I read the contracts carefully, marked them up
| with specific questions, and spent $300 on a half-hour
| consult with a lawyer, who said it was pretty much all
| enforceable in my state. (So I left the company, which
| worked out fine.)
| AaronM wrote:
| One question/comment here, I don't think they can force
| you to sign a new one in most states without giving you
| something in return. I know someone who refused to sign a
| new contract because they didn't give him anything in
| return, and there was nothing they could do about it, or
| at least there was nothing they did do about it.
| DennisP wrote:
| Hah interesting. My lawyer didn't mention that so maybe
| my state was an exception. Or, our employers can fire us
| anytime for any reason so maybe he figured it would be
| impractical to litigate.
| WalterBright wrote:
| It is dishonorable to sign an agreement knowing you won't
| adhere to your end because it's unenforceable.
|
| After all, we make promises all the time that are
| unenforceable, but we keep them.
| idontpost wrote:
| [dead]
| riskable wrote:
| That's like saying, "it's dishonorable to agree to a
| contract to kill someone knowing full well such a contract
| isn't enforceable."
|
| If one party holds all the cards in a contract negotiation
| it's never truly being negotiated in good faith in the
| first place. Furthermore, one could argue that without
| having an expert on contract law _right then and there_
| available to answer any questions about any given contract
| means it falls under a "lack of capacity" for basically
| anyone who isn't a lawyer.
|
| Employee agreements _often_ fail in courts because of:
| - Duress - Lack of capacity (e.g. due to overly
| complicated legalese *specifically written to be hard to
| understand*) - Undue influence (e.g. company says
| they'll hire someone else if you ask to get the contract
| reviewed by a lawyer before signing) -
| Misrepresentation (e.g. job was described as "X" but turns
| out it's "Y") - Non-disclosure (e.g. candidate was
| not told job would require purchasing products or services
| sold by the company itself or a partner) -
| Unconscionability (e.g. some term or terms in the contract
| are so unfair that it cannot be allowed to stand... Like a
| non-compete that says you can't work within 50 miles of
| your former place of employment if you leave)
|
| The "usual one" is unconscionability: Employers have unfair
| bargaining power almost all of the time and judges and
| juries are easy to convince of this. Also, these sorts of
| things don't usually make it to court unless there's
| something ridiculous in the contract. What's interesting is
| _there usually is_ something ridiculous in every employee
| contract. It 's just that those ridiculous things aren't
| usually the part of the contract a company is trying to
| enforce so they don't come up as often.
| thwayunion wrote:
| It's even more dishonorable for a company with a legal team
| to offer up terms in a contract that are explicitly
| illegal, and then use those illegal terms to conduct unfair
| and deceptive business practices in the labor market.
|
| In fact, that scenario is so dishonorable that in some
| states you can ask the court for triple damages if the
| employer tries to enforce the noncompete
| WalterBright wrote:
| Your having honor is not conditional on others having
| honor.
| orangecat wrote:
| Cooperating against a defect-bot is not an indication of
| honor.
| thwayunion wrote:
| There is no honor is dying on an ER stretcher.
|
| For anyone in the US who needs regular healthcare beyond
| what's provided by Medicaid, the labor market is a war
| for (literal) survival. If the ownership class didn't
| want to return to an extremely adversarial relationship
| with labor, then they shouldn't have gutted the social
| safety net.
|
| And no, I'm not going to show my hand in an imperfect
| information game... it would be stupid and dishonorable
| to my family to present with anything other than
| bourgeoisie professional-managerial class sensibilities.
| WalterBright wrote:
| Honor is what separates men from animals. Each of us gets
| to choose which we are.
| Shaggy2000 wrote:
| Right on, stick it to the man
| matheusmoreira wrote:
| Dishonorable? I don't think so. They're the ones trying to
| trick employees into immoral and illegal obligations. They
| only have themselves to blame if it blows up in their
| faces. They played the game and they lost.
| thwayunion wrote:
| Serious question: is it even possible to get a well-paying dev
| position that doesn't have one or more of the clauses listed in
| the article?
|
| Another consideration is whether the contract can be enforced
| and your legal recourse if the counter-party attempts to
| enforce an invalid contract clause. This is particularly true
| for noncompetes.
|
| A better piece of advice than "never sign" is to simply find an
| employment lawyer and discuss the ramifications of the contract
| prior to signing.
| claytonjy wrote:
| I have successfully negotiated my way out of non-competes and
| other onerous employment contract terms. Only at small- or
| medium-sized startups, though, not big tech. In general the
| bigger the company, the less willing legal is to play ball. I
| suspect going for rather senior roles helps, too.
| thwayunion wrote:
| Non-competes are dog-eat-dog "fuck you" territory for me. I
| don't even bother negotiating. I happily sign non-competes,
| but will never sign a non-compete that's _actually
| enforceable_. If their lawyers want to lie to me about what
| 's legal in my state, I'm happy to let them engage in
| unfair and deceptive behavior right up until there are
| actual damages.
|
| More importantly, I would also happily fight them in court
| if it came to that (and retire on the triple damages).
|
| I'm thinking of some of the other clauses:
|
| 1. "one-sided termination clause": Every contract in an at-
| will jurisdictions without a guaranteed exit bonus
| contains, implicitly or otherwise, a "one-sided termination
| clause". I have never seen a contract for "normal working
| stiffs" that contains an exit bonus, and I've only ever
| worked in at-will jurisdictions.
|
| 2. IP assignment
|
| 3. Confidentiality agreements with broad language
| TylerE wrote:
| Very, very, bad idea. Never sign something you disagree
| with because you believe it to be unenforceable.
| toomuchtodo wrote:
| I disagree. My employment attorney recently reviewed a
| "non compete non solicitation" doc for an engagement and
| said, "it's copied from LegalZoom and is so badly written
| it will be unenforcible in the jurisdiction and here is
| why." They earned their $300 for reviewing my employment
| docs (for reasons beyond this specific issue). When in
| doubt, seek counsel and follow their guidance.
| TylerE wrote:
| That's...rather different. You actually consulted an
| attorney. 99.9% of the people trying this one weird trick
| do not, often to their great cost.
| [deleted]
| sidewndr46 wrote:
| How would you even function in the US? Just one time to
| get an apartment they had me sign an agreement stating I
| was not in the military, had never been in the military &
| would not join so long as I lived there. Keep in mind, I
| was subject to conscription at the time.
|
| The whole thing is laughably unenforceable as well.
| They're trying to end run around federal law protecting
| members of the uniformed services. You can write any
| contract you want & have anyone you want sign it about.
| Doesn't mean anything, at all.
|
| Also I'm pretty sure if I got called up to go to war,
| there is going to be someone in the DoD who can give me a
| little legal help in explaining to the landlord how hard
| they need to pound sand.
| TylerE wrote:
| That's a good example, but most contracts have language
| such as "if any clause of this contract is found to be
| invalid, the rest remains in force".
|
| So yea, in a case like that that part of the contract
| would be struck, but it isn't a get out of jail free card
| for the entire contract.
| sidewndr46 wrote:
| You're talking about "severability" in US contract law.
| The rest of the contract was either stupid (regulating my
| usage of the non-existent golf course) or just garden
| variety stuff (can't sublet, etc.).
|
| The same company also just dropped off an "updated"
| contract a few months later and told me that I had to
| review it and sign it or move out by the end of the
| month. I obviously just ignored this.
| jameshart wrote:
| Right, but in an employment contract you want that
| severability. If the company tries to enforce the non
| compete clause and it's invalid, you don't want that to
| invalidate their obligations with respect to your
| pension.
| BeetleB wrote:
| My (well known, big) company doesn't do non-competes. They do
| have the clause of not poaching employees for a year after
| you leave, though.
|
| And I'm free to work on other stuff or have a side business.
| People in the company disagree on how much of that needs to
| be disclosed, though.
| letmeinhere wrote:
| [flagged]
| no-dr-onboard wrote:
| The second half of your argument here appears to be saying
| something that the commenter never mentioned.
| glenstein wrote:
| Normally I 100% agree and this is, to me, one of the most
| important things that separates comments that are
| constructive from ones that are unfocused and all over the
| map. A lot of my own comment history is me making that same
| criticism.
|
| But in this case, I think they are identifying an
| implication of "not making generalities" which I find to be
| perfectly appropriate. It reminds me of the robolending
| scandal, and how companies involved tried to deflect
| systematic criticism by suggesting each instance of
| robolending needed to be reviewed on a case by case basis
| without drawing why systematic conclusions.
|
| It's meant as a criticism of how "don't make
| generalizations" can be used to deflect important and
| appropriate criticism, and I don't think it's just a case
| of someone changing the subject randomly.
| Karunamon wrote:
| Such a point could be made directly and respectfully, and
| without the sneering sarcasm. Engaging with such content
| rather than rejecting that behavior out of hand rewards
| it and demonstrates both to the poster and to any
| onlookers that lowering the level of discussion is
| welcome here.
| letmeinhere wrote:
| I get that you don't like sarcasm (disagree, but to each
| his own), but how is the comment that I replied to more
| "respectful"? They dismissed out of hand the entire
| intellectual exercise of the original post because it
| doesn't jibe with their ideal of perfectly informed
| employees making optimal contracts with their employers.
|
| I found their tone quite sneering and flippant, and so I
| parodied it (pretty mildly, I might add, the implications
| are right there in the comment I replied to).
| glenstein wrote:
| Asking people not to misread a comment is an exhortation
| to improve quality of discussion. Endorsing a misreading
| because you dislike the comment being misread does not
| improve quality of discussion. You're equivocating
| between (1) misinterpret and (2) "reject out of hand" in
| order to make that endorsement work.
|
| You can object to style without having to signal to the
| community that misinterpreting comments is an accepted
| practice.
| Karunamon wrote:
| It is not a misread to point out that the comment was
| loaded with sarcasm and would have been better without
| it, neither is it one to point out that engaging with
| that content causes its proliferation.
| glenstein wrote:
| It is a misread to equivocate between stylistic
| objections and a criticism that was not about stylistic
| objections and suggest that both were expressing the same
| idea.
|
| Endorsing the misread as the cost of doing business in
| order to reject a comment over stylistic objections
| signals that misreading is to be embraced as a community
| value.
| Karunamon wrote:
| Which I didn't do? Nobody misread anything. The comment
| is objectively nasty and sarcastic, against the rules of
| the site, and I asked you to consider that substantive
| comments are best addressed to other substantive
| comments.
| haswell wrote:
| All of which are ideas that are communicated more clearly
| when they aren't dripping with sarcasm so thick that it
| obscures the ideas behind it.
| LBJsPNS wrote:
| [flagged]
| jjluoma wrote:
| I didn't sign a work contract because it was written in English
| and there was no translation available, especially since it
| contained a non-standard clause related to intellectual property
| rights. All communication before signing the contract had been in
| my native language.
| CPLX wrote:
| This is silly. It would be useful if it said something like "here
| are clauses that you should understand the implications of very
| clearly" but that's about it.
|
| Work for hire clauses are totally normal _for certain kinds of
| work_ and no sane company is going to want you contributing some
| relatively inconsequential portion of a creative project unless
| the contract makes it clear you won't claim to own it all later.
|
| Same goes for the idea of never signing an exclusive distribution
| agreement. You would tell someone not to have their book
| published by a major publisher?
|
| The rest mostly have nuance too. The various forms of non compete
| and NDA agreements are clearly unethical for entry level workers
| and would be essential for any high level CEO gig, or principals
| in a corporate acquisition
|
| Also big companies are conservative, and they don't care about
| your demands. If you don't have a track record and want to do
| business with big companies you might have to sign some crazy
| stuff. Your other option is to not get enterprise business, and
| for the most part it doesn't really matter it's fine to sign some
| stuff and get paid.
|
| The answer to this stuff is it depends.
| meowfly wrote:
| The only time I've been burned by my contract is from relocation
| expenses. I went to a company to take a job and not long into it
| a reorg moved me to a different team. I left the company and they
| demanded I pay back my relocation expenses. When I protested that
| they changed my role to something not what I was expecting, I was
| told that according to my contract it doesn't matter. The
| temporary housing I was put in was very expensive despite the
| fact I hated it. Luckily, my balance was paid as part of a
| signing bonus by my new company.
|
| My lesson here was: Never take a relocation package that has the
| company sorting your housing and travel, just ask for a large
| signing bonus instead.
| jrockway wrote:
| I got paid relocation once, and the contract said that if any
| employment changes were on their end, I wouldn't have to pay
| the costs back. (I think this is why there are clauses like "if
| we don't hear from you for 3 days, that counts as resigning"
| instead of "if we don't hear from you for 3 days, you're
| fired". BTW, never go on vacation in a no-cell-phone area over
| the transition date for a vacation tracking system migration.
| Learned that one the hard way!)
|
| Nobody should sign a contract where they can fire you and
| charge you relocation costs; that is not employment but a scam
| to prop up relocation companies!
|
| If you quit, then it's 50/50 in my mind. My take is that I
| don't want to be liable anything for quitting; the signing
| bonus is literally a bonus for signing the contract, not an
| obligation to do a certain amount of work. Salary covers the
| work. But I'd probably take a signing bonus that requires some
| tenure to not have to pay it back. Spend the money after that
| period. (Relocation is different to me because the disruption
| in your life is what they're paying for. If you don't like the
| job, your life was still disrupted. You're not asking for them
| to unrelocate you.)
| adrianmsmith wrote:
| Even signing bonuses sometimes have to be repaid if you leave
| the company too quickly.
| meowfly wrote:
| For sure. I sort of get the company not wanting spend money
| to sign me and then I immediately quit.
|
| The relocation management company racked up a bill I would
| have never incurred if I allocated the money myself.
| Delphiza wrote:
| OP refers to a post from Joel Spolsky, but there is a better one
| that he wrote that I'll include the text below.
|
| It was one of those posts that stuck in my head because it makes
| sense. There may be an overriding reason why an employer is
| likely to tell you to take the contract as-is or walk, no matter
| how much they want you to join. You may think that you are super-
| valuable engineer, and maybe even the hiring manager, but not if
| your negotiation is likely to hold up the due diligence of the
| investors' exit.
|
| https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
|
| _Even if a company decided, "oh gosh, we don't want to own the
| 5:00-9:00 inventions," they would soon get into trouble. Why?
| Because they might try to take an investment, and the investor
| would say, "prove to me that you're not going to get sued by some
| disgruntled ex-employee who claims to have invented the things
| that you're selling." The company wants to be able to pull out a
| list of all current and past employees, and show a contract from
| every single one of them assigning inventions to the company.
| This is expected as a part of due diligence in every single high
| tech financing, merger, and acquisition, so a software company
| that isn't careful about getting these assignments is going to
| have trouble getting financed, or merging, or being acquired, and
| that ONE GUY from 1998 who didn't sign the agreement is going to
| be a real jerk about signing it now, because he knows that he's
| personally holding up a $350,000,000 acquisition and he can
| demand a lot of money to sign._
|
| The above is an IP example, but non-competes may be the same
| (regardless of if they are enforceable). Q:"What is to stop
| everybody resigning after we announce the merger and working for
| the senior manager the next day?" A:"Every employee has signed
| one of <<these>> and most will be scared of the threatening
| lawyers letters that we send."
| EntropyIsAHoax wrote:
| [dead]
| gnopgnip wrote:
| How are noncompetes the same when they are illegal in CA
| Delphiza wrote:
| They are probably not illegal to put into a contract, even if
| they are illegal to enforce. I don't know about CA
| specifically, but we have similar statutory rights UK, which
| is why employees largely ignore them by signing the contract
| with the non-compete clause in.
|
| The point still remains. There is sufficient contractual
| legalese that is backed up by threatening lawyers letters
| that stop some or most of the staff leaving and going
| elsewhere. That is enough for the deal to go through.
| [deleted]
| secondstring wrote:
| I mean in principle, I agree with all of these points. But in
| reality if you stick to these rules hard and fast, you'll
| basically never accept a job offer. That's clearly an
| exaggeration, but many-to-most of these clauses are in every
| boilerplate contract.
|
| Whether it's a small startup that's using a generic contract
| they've gotten from the internet or their lawyers, up to massive
| corporations, they're all going to include semblances of some of
| these points. Probably for different reasons, but the points will
| still be in there. Startups and small companies might be more
| flexible to work with you on changing parts, but still the legal
| headache of changing anything is often far greater for the
| company than just passing on you and looking for another
| candidate. Infinity moreso for big companies.
|
| My experience is biased towards technical roles (like most on
| HN), but I've worked for startups, big companies, and as a
| freelance contractor. It's the same stuff in most contracts.
| Obviously my experience is not indicative of 100% of companies
| and I'm sure I'll have people chime in saying they had success
| getting company X to change some of their contract, but it's
| overwhelmingly not going to happen. So to treat these points as
| 'rules' instead of 'points to be aware of' is a bit too hardline
| of a stance to take in my opinion.
| wheybags wrote:
| I've had a "we own everything you make" clause in contracts
| before, it's just copy pasted boilerplate, and they were fine
| with removing it when I asked.
|
| Noncompetes I've been fine with, because they were always quite
| niche companies, and the wording was something along the lines
| of "don't join our direct competitors for a few years", and
| that seems ok to me. I will grant that it gets more complicated
| with megacorporations that work on everything though, as their
| "competitors" are roughly everyone.
| cloogshicer wrote:
| I think the important thing is that you asked.
|
| I've had a very negative experience, where I also asked, and
| they basically said "sign it or GTFO". So I did the latter,
| and I'm very glad I did.
| codingdave wrote:
| A number of years back, our company was acquired and they
| sent us employment contracts from our new owners, with that
| same "sign it or GTFO" message. Many people signed. A few
| of us just didn't. Nastygrams kept on coming, we kept on
| ignoring them. Ultimately, we never did end up signing.
|
| Which is the other piece of the puzzle - lawyers are really
| good at knowing when they actually have power and when they
| do not. Unfortunately, when they don't truly have legal
| power they resort to bullying. So if you are being bullied
| to sign a contract, that usually is a red flag to stop,
| really look at things, and figure out why they are using
| that tactic. You may be in a better situation than you
| think.
| pnutjam wrote:
| We need a SAG style union to address issues like this, but
| that's pie in the sky dreaming.
| kibwen wrote:
| _> many-to-most of these clauses are in every boilerplate
| contract_
|
| Contracts are entirely negotiable. If there's a job you want,
| but the contract contains an objectionable clause, tell them
| that you're willing to accept if they strike that clause. If
| you're at the point in the hiring process where they're showing
| you the contract, that means that they've sunk resources into
| you that they don't want to throw away. And the fact that these
| clauses are boilerplate, as you say, works in your favor,
| because nobody involved in the hiring process consciously chose
| to put that clause in and they probably don't really give a
| damn.
| [deleted]
| moron4hire wrote:
| In 20 years, I've never seen a company that was willing to
| negotiate over the employment contract of an _employee_. As a
| freelance consultant, I had free range to negotiate, but as
| an employee, the contract was _always_ presented as "take it
| or leave."
| riskable wrote:
| That's probably because most people don't even think about
| it or bother trying. They may not even read the agreement!
|
| I've successfully negotiated contracts several times in the
| past. Even once at a big company (that I knew was desperate
| :). As long as what you're asking for is reasonable they'll
| usually make the change _unless_ it 's a really big
| company. In that case they're not going to bother and just
| tell you to either sign it or go to work somewhere else.
| They know they have plenty of leverage and there's always
| someone else they can hire.
| OkayPhysicist wrote:
| I've negotiated literally every employment contract I've
| ever signed. Hiring people is expensive, and by the time
| you've found someone you're willing to extend an offer to,
| there's a lot of sunk cost. That, my friend, is called
| "leverage".
| secondstring wrote:
| > because nobody involved in the hiring process consciously
| chose to put that clause in and they probably don't really
| give a damn.
|
| Yes but I think I didn't convey my point enough. Nobody
| involved in the hiring process cares, and if it's a good
| company they probably agree with you. But this standard
| contract is what they paid attorneys good money to comb over
| with a fine tooth comb for liability, and eventually sign off
| on.
|
| Very very very few companies are going to go pay Expensive
| Law Co. (TM) $500 per hour to review changes to the contract
| just because _one_ potential hire who still might not even
| accept the offer says they won't accept if that's in it. It's
| way out of most recruiters or engineering managers that you
| might be interfacing with to make that happen, not to mention
| making their life way harder. Heck even a startup CTO might
| balk at having to go spend more on legal.
|
| I have had clauses similar to the "we own everything you do
| 24/day" one and I've pushed back on all of them. Every time,
| the response is "yes we totally understand but we have no
| power to change the wording in this contract we use for every
| single employee" and it just comes down to a gut judgement
| call on my part on if I feel they will actually screw me over
| on that point.
|
| Again to emphasise, I totally agree logically with author's
| and your points. But it's simply not realistic to approach
| job hunting that black and white unless you're comfortable
| being out of work for months until you find the perfectly-
| flexible-enough company.
| grey-area wrote:
| They'll tell you that this is unchangeable, it's the
| default, etc the first few times, but if you persist,
| they'll usually just strike out a clause like this if they
| actually want to come to an agreement. They may not even
| bother telling legal (depends on company size).
|
| Really it depends whether you're negotiating from a
| position of strength and and can walk away, if you are
| changes like this become possible, if you are not changes
| are more difficult.
| nerdponx wrote:
| I've never had any HR person give up even a comma in a
| contract like this, even after a full week of back-and-
| forth negotiating and trying to get them to strike out an
| individual sentence or change a word. Their attitude is
| that even if they lose their first choice hire over it,
| they always have a pipeline, and they'd rather adhere
| strictly to legal protocol and go with their second-
| choice hire.
| grey-area wrote:
| Don't talk to HR, talk to the hiring manager.
| nerdponx wrote:
| They've always just kicked it over to HR. In hindsight I
| probably could have leaned on them harder.
| varispeed wrote:
| I think you are exaggerating.
|
| > Very very very few companies are going to go pay
| Expensive Law Co. (TM) $500 per hour to review changes to
| the contrac
|
| If they are already hiring "Expensive Law Co." then most
| likely they have them contracted anyway. Even with big
| corporations, there was never an issue with this. They were
| always happy to send my changes to their legal team for
| review and also allowed me as much time as I needed to
| review and consult my own legal team (if I had one). It is
| in their and my interest that the contract describes the
| relationship in a way we both want and it is fair for both
| sides.
|
| > "yes we totally understand but we have no power to change
| the wording in this contract we use for every single
| employee"
|
| Had that too. Just be persistent and firm. "I can't sign
| the contract with these clauses in." 100% of the time they
| would eventually change their mind. It may be bad for them
| that the clauses will be gone, and they need to show their
| employer they put up a fight and also it would be much
| worse to lose resource that otherwise was ticking all the
| boxes.
| nerdponx wrote:
| The issue is in _smaller_ companies that _don 't_ have
| standing contracts with Expensive Law Co, and can't
| afford to even pick up the phone to ask them a question
| unless they're in serious need.
| Aeolun wrote:
| Nobody is going over a contract with legsl just because
| they removed the 'we own everything you make' clause.
| That's an irrelevant part of the contract.
| riskable wrote:
| At big companies they will _not_ change the contract for
| a single candidate. No way. Not unless it 's a "big deal"
| sort of job where the executives are involved. They'll
| just tell you to go pound sand.
|
| The _correct_ course of action is to cross out the
| clause, put your initials next to it, then sign the
| document. It is the responsibility of the company to have
| _someone_ review contracts for such things but they never
| do; they just collect all the documents, check they 're
| signed, and file them away to be forgotten about forever
| (or until a lawsuit requires they be retrieved).
|
| I've done this at several employers! I even tell the HR
| people what I'm doing so they can't claim they're being
| misled. Not once have they ever understood what I was
| even talking about or even cared. It's because they're HR
| people; not lawyers. They just "follow the script" as it
| were.
|
| One woman at HR said that what I did--crossing out the
| "we own everything you make while you work here plus a
| year afterwards" clause--was a "very good idea" and just
| took my documents and filed them away like anyone else's.
| I even offered alternative language that would be fair
| along the lines of, "we own everything you make using
| company resources in your official line of work" but she
| wasn't interested.
|
| A lot of HN folks _make stuff_ and these invention
| clauses are completely ridiculous. If you invent a new
| kind of apple peeler in your garage on a weekend using
| your own tools it is absolutely unconscionable that your
| employer who pays you to do programming or management
| work could claim ownership of that thing. Even if the
| contract says as such I seriously doubt any court would
| enforce that unless you worked at a manufacturer of apple
| peelers.
| kmoser wrote:
| This. You always have the power to change the proposed
| contract to suit your needs, and let them balk if they
| don't like it. This assumes it's a contract you can
| actually edit (whether on the computer or mark up with
| pen); for non-editable things (e.g. DocuSign contracts),
| I'm not sure what you'd do if you can't print it out pre-
| signing.
| nerdponx wrote:
| For the latter, I've sent them a "diff" over email
| containing the changes I required before signing. They
| didn't accept any changes to the document itself, but
| they did let me create a separate document with
| clarifying language.
| nerdponx wrote:
| My experience in the USA is that they will flatly refuse
| to change anything in the contract, and will tell you to
| take it as-is or walk away, in part because they feel
| like they can't make changes without getting it re-
| approved by legal first.
| OkayPhysicist wrote:
| I've had the opposite experience. There was always a bit
| of hand-wringing about "oh, but this is the contract
| approved by our legal consultants...", but pointing out
| the fact that A) this clause is flatly impossible to
| enforce in my jurisdiction and B) it would be immensely
| silly to blow up this entire hiring process over a
| contract clause that, best case scenario, would involve
| them having to sue me and lose to enforce has always made
| the hiring manager sign off on the reasonable
| modifications.
|
| Of course, if the clauses are enforceable in your state,
| it might be a different matter, but that's also an
| opportunity to make demands. "Sure we agreed to $XXX,XXX
| , but there was no mention of a noncompete. That's going
| to need $XXX,XXX+$YY,YYY or $Z weeks of vacation". Make
| the numbers bigger than you think is reasonable, and
| they'll probably cave on the contract clause. Or they'll
| compensate you for it. Win/Win.
| pc86 wrote:
| They don't give a damn, but every time I've asked for changes
| to contracts, including positions I was actively recruited
| for by the hiring manager, once even by the _owner_ of the
| company, I 'm told to sign it or no job. In the case of the
| owner asking me to apply, they literally said "My lawyer says
| to leave it in, you're not a lawyer, it's staying in."
|
| I'm sure some people have negotiated these things but I've
| tried multiple times - to shorten noncompete lengths, to
| remove the "anything you do on our machine is ours for all
| time" stuff, etc - but never had any success.
| bbarnett wrote:
| "My lawyer says to leave it in, you're not a lawyer, it's
| staying in."
|
| The response there is "Well you aren't a lawyer either, and
| mine said it needs to go".
|
| As others here have said, crazy clauses can go. One key
| point, make it clear it is about unduly restricting right
| to income in the future, _without_ wanting to screw over
| anyone.
|
| This is why a second response, such as "Well, if you triple
| the salary ... maybe" makes a point here.
|
| Some contracts literally make it impossible for you to work
| in the future, in your field. That means 'gimme retirement
| salary on exit' minimum.
|
| (Such broad clauses are rarely enforceable, you can't
| prevent a person from working at all, but... )
| the_gipsy wrote:
| Can you clarify if you walked away (and they let you) or
| not? Because if not, then it was just negotiating 101.
| nerdponx wrote:
| They will 100% let you walk over this. And then what?
| Your next offer will be the same, and so on. Market
| forces don't work if every agent on one side of the
| market does exactly the same thing.
| ModernMech wrote:
| > But in reality if you stick to these rules hard and fast,
| you'll basically never accept a job offer. That's clearly an
| exaggeration, but many-to-most of these clauses are in every
| boilerplate contract.
|
| In the tech industry, yeah, but there are industries that
| aren't so employee hostile where you can find better contract
| terms. I'd have to say in my experience, the tech industry is
| one of the worst when it comes to the malicious application of
| employment contracts. Apple is especially egregious with
| forcing interviewees to sign expansive NDAs; the Dilbert
| cartoon is spot on by making them dress like Apple store
| employees.
| secondstring wrote:
| Totally correct - I tried to caveat that in my post by saying
| I'm skewed hard tech industry. That was the main attention of
| the article, and my main experience, so I was writing from
| that viewpoint.
|
| I somehow doubt that Vail Resorts has a non-compete for their
| lift operators to go work on another mountain (although now
| that I think about it VR is pretty terrible so this might
| have been a bad example)
| sumtechguy wrote:
| The funny NDA's are the ones where they think they have a
| 'secret sauce'. Then you get in there and find out they are
| using some off the shelf API's exactly as intended. You start
| asking exact questions and they do not understand how you
| know so much about their product already.
| ergonaught wrote:
| I assume that I understand your point and probably even agree
| with the sentiment, however the content itself appears to be
| saying, "Don't sign contracts", or, "Don't work for other
| people." Granted, that's from a mostly USA-based perspective.
|
| I've agreed to some terms because I didn't actually care whether
| they were enforced, because I was pretty confident the company
| couldn't or at least wouldn't do anything about it, or because my
| life circumstances didn't supply the luxury of choice.
|
| Understanding the potential consequences and "why those may be
| bad" is useful, and prodding companies/governments to move away
| from that stuff is awesome, but "don't do that" isn't necessarily
| an option in many (most) contexts.
| waynesonfire wrote:
| would like to see a version of this called "contracts you should
| sign" -- like, what does a golden parachute clause look like? how
| do these executives keep walking away with so much money while
| floor employees are given 11 weeks, and it's out of generosity of
| management.
| pocket_cheese wrote:
| Non competes are becoming less and less enforceable in the US.
|
| I left my old company and wanted to start a competing business in
| a different vertical in the e-commerce space. What actually
| stopped me was the privacy and inventions and non disclosure
| agreements.
|
| Pretty much it prevented me from using any know how I learned
| while at my last company and disallowed me from using any of the
| same suppliers and marketplaces to buy and sell on (of which
| there are few in my business domain).
|
| In my experience, these types of agreements can be the actual
| thing that stops you from doing your own thing.
| danjoredd wrote:
| In Texas, non-competes are so restricted that employers can
| barely enforce them. I know people who signed non-competes,
| went to work for a competitor, and when they were sued the
| judge threw the case out because the non-compete clause was
| unenforceable according to Texas Law. It simply said "I agree
| not to start my own IT business or work for a competing IT
| business in three years of my departure" without specifying a
| range of distance that is enforceable.
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