IANAL, but here's what I've been told: A contract is two-way, so you always have the right to simply cross out the parts that you don't like, and _then_ sign it. If the other party then won't sign it, you negotiate. Or maybe they won't notice that you crossed out some parts.. it's your right to do so though.
Without any doubt, a contract is a two-way agreement, but if one of the participants holds firm to the initial wording of the contract, then you can change it all you want, but it won't be a binding contract until both parties agree on it's content. However, when contracts like the one shown are initially drafted, that is how it should be considered, a draft and nothing more, especially if both parties do not agree. In which case, the contract should be ammended until both parties can agree upon it's substance. But once again, HOWEVER, in an employee/employer relationship or contractual agreement, the employer usually has the upper hand, because the employees financial security can depend upon signing the agreement, as such is the case here. However that does not imply that Bean's employer is unwilling to negotiate the terms of the contract, nor does it mean that his employer is obligated to negotiate.
I have doubts that a 'company lawyer' wrote this. It is just too generic, refers to your company as The Company, and has no tie in to the actual name, location, and so on.
In other words, this is boilerplate that was created as an example. And it may be written by someone that has all sorts of opinions that are not tied into your local laws. Also, it looks old in typeset. It is likely out-dated as well.
When I had to sign one, it actually was the most formal, best printed, and clearly detailed document in the employment package.
Why is all this important?
If so little thought has been put into using this, the employer may abandon following up on it at a later date. I've had to sign several store-bought boiler plate leases over the years and the general consensus is that they were far too one sided, violated actual law, and could easily be defeated by going to Small Claims Court.
People do these silly things just because lawyers are so expensive. Electronics is not the only realm of DIY. Also, if you are in a state that is based on English Common Law, you might find it very easy to defend yourself against such a document. But if you are in California, you just about have to hire a bevy of lawyers to challenge anything.
Without proper reference to whom the employer is and not counter-signed by a company officer, you might claim that you really thought it was for another enterprise than your present employer.
Basic business law requires everyone that is a party to a contract be clearly identified.
I'm sure Bean redacted the actual company name from the first paragraph in order to protect them end himself. Legal documents generally identify the parties early on and assign simpler names for easier reference throughout the document. It's easier to say "The Company" rather than "The Amalgamated Tool and Die and Electronics Instrumentation Corporation and Holding Company, LLC".
Sorry, Bean, if I used the actual company name! :0)
I had to sign something similar about 5 or 6 years back to continue doing work for one of my clients.
They wanted me and another consultant to both sign the agreement. We contacted an attorney and submitted a couple of revised versions that we felt better protected us.
Each time we submitted a revised version they countered with a MORE RESTRICTIVE agreement targeting the areas that we had sought to change.
Due to the economy at the time and the amount of work available our attorney ended up saying it was better to sign if we needed the work and "if we trusted the owner of the company".
To make a long story short, the reason they wanted the agreements was because they were selling the company to a much larger corporation, we didn't know this of course until a few weeks after signing.
They stopped working with the other consultant not long after the sale, his new job is in a different line of work, he hasn't ran into any issues.
They are still my largest client and hopefully will remain as such, if not I'm sure they will be ready to swat me with that agreement if they ever perceive any type of violation, valid or not.
Anyway, the main point I guess is to try to find out their reasons for wanting the agreement so you can base your decision on the most complete information possible.
Please don't get upset with me, but I must disagree with this comment:
Anyway, the main point I guess is to try to find out their reasons for wanting the agreement so you can base your decision on the most complete information possible.
I believe the reason behind the contract has little meaning. It is the content of the contract that will be binding if signed, not the reason.
When I arrived in Taiwan, I needed work immediately - so after a couple of weeks I signed on with a major English language school. They provided a one-year contract with legal residency in Taiwan and had a steady stream of classes.
When it came time to do the paper, all employment documents were in Chinese AND they offered no opportunity to have translated ones provided. I just signed, let them process me and put me to work. This went on for seven years with rather ridiculous rituals. In some cases, they have someone provide an English translation that made no sense. Work ended up being 7 days a week for the first 3 years and 6 days a week for 4 years after that.
At the end of seven years, I went to work for the Language Center in a university, but I was not required to sign a contract as I had acquired permanent residency and an open work permit. But later I shifted to another university and they too presented an all Chinese contract and a refusal to let me translate - just the requirement that I MUST sign the document.
I also worked part-time jobs on the side that had me sign documents that I couldn't read.
I realize this is all rather Draconian, but when you need the job, just sign the document and do as you please. If you are a reasonable and valued employee, it is likely to never become an issue.
Employers can be very unreasonable. The school I worked for, for 7 years refused to grant me leave when my mother was dying. So I quit. And after all those stupid contracts, the presented me with yet another to sign in order to quit where I was suppose to pay $25,000NT (about $750USD) for breaking the contract. This they said I must sign or I could not return to Taiwan. I just presented my permanent residency and open work permit (which I had not previously mentioned to them) and said 'Good bye'.
The first university didn't require a contract, but they also refused to allow me any vacation for 3 years. They would always have me working classes that started in an overlapping schedule. They also did not pay my health insurance as I was an out-side contractor (does that sound familiar?)
A lot of games get played by employers that are highly unreasonable. But you can bet that they will consider those that want to negotiate and revise as trouble makers. Let someone else take the fall. It really doesn't matter what is legal if you need the job.
It could have been worse, in the states I would have just had to wander from temp job to temp job.
Please don't get upset with me, but I must disagree with this comment:
I believe the reason behind the contract has little meaning. It is the content of the contract that will be binding if signed, not the reason.
Bruce
lol, nothing to get upset about. You are right that the contract is all that matters in the end, my point was that I went ahead an signed because "I trusted the owner". Had I known they were selling the company I would have stood my ground on the changes.
So although the current agreement may not sound so bad given the context of Bean's experience with the employeer to this point, would it sound the same knowing some other large company was buying them out.
The current company may not have any products or interest in the area that Bean wants to persue on his own, but what if the new buyer being much larger does have an interest in the area?
Suggest you look up DSC v Evan Brown. Then get a lawyer to help you. DO NOT write it yourselves. Unless one of you is an experienced JD and really is not a fool.
The plantiff in that case has his own web page where he describes the scenario, which can be found here: http://unixguru.com/
I must admit it was fairly interesting. Employee/employer contracts are a nasty business. I once signed a non-competition contract and it came back to bite me in the rump.
[QUOTE=idbruce;1130888Employee/employer contracts are a nasty business. I once signed a non-competition contract and it came back to bite me in the rump.[/QUOTE]
We should keep in mind that it isn't just "Employeers Being Evil", a lot of these agreements exist because of employees making off with IP that the employer spent time and money to develop.
There is a big difference between learning how to calculate certain aspects of an engineered design and taking copies of software and spreadsheets developed by the employer to do those calculations efficiently.
Then again having the employer want to claim rights to your every thought even when those thoughts have nothing to do with their business is an issue as well.
There is a balance that needs to be found and that of course that is the hard part.
Retain an attorney. Call your local State Bar and get them to refer you for a free consult. You can take this and your concerns to them and for a few hundred bucks, get it modified so that you and the company are protected.
One thing that strikes me is, "What is the trigger event?" Are they thinking of selling? Did they get some fear and doubt put into them by somebody wanting to sell IP software or services? (likely scenario actually --I know somebody who does this, and initiating a contract like this is step one of many) It could be something as simple as a conversation they had which leads to, "you don't have those contracts??" Who knows? I would ask what the compelling event is though. That is good info for the attorney to use, and it helps you with context.
Before you say anything to them, get your attorney time setup and executed. If they press, ask nicely for some time and consideration, and make sure that amount of time is sufficient for your review, and one revision.
I would not sign that as is. Time limits on this stuff are perfectly reasonable. The reason? Job searches. It's that simple. Should you want to be employed elsewhere, for whatever reason --doesn't matter, each one of these you enter into limits job searches, and that's reasonable to limit. Expected too, and don't let them believe otherwise. 2-3 years is perfectly ordinary. More than 5 is unreasonable. 4 is pushing it.
Secondly, offering a revision to it is perfectly reasonable as well. Don't let them think otherwise. They retained legal, or worse just got some form somewhere. Let them know you are taking care of them and yourself. If this stuff is done, it really needs to be done right for your mutual benefit. Keep pounding that home, expressing your sincere desire to manage this EQUITABLY. (important word to use, so use it, because it's extremely difficult to argue with)
Thirdly, they don't really specify on their time and dime. They need to, or that language as written can be used to simply own whatever you do and it can be done on the most flimsy of claims too. The brutal thing about that is when that time comes, you are left in a very ugly position, requiring lots of time and $$$ to resolve, if you even can.
Do not sign it as is, without first vetting it through your attorney.
I know people hate attorneys. But, this is a fantastic time to develop a working relationship with one. Get a referral for an IP attorney from your State Bar, get your consult which will give you the lay of the land for nothing, then retain them to work through this with you. Do not worry about what management thinks about you doing that. As a working professional, reviewing a legal agreement with your attorney is commonplace behavior, and expected behavior.
Throughout all of that, bury your emotions on it. Hide them, and frame every single conversation in terms of your valued working relationship, eagerness to do this right and honor both your best career interests as well as theirs as a company you value working for, blah, blah, blah... You might hate that, but it will pay off very nicely with an agreement you can they can live with.
Then move on, no worries, no harm, no foul.
As a bonus, you also get the boundaries sorted out so that you can know for sure what is yours and what is theirs, which may well pay off better than any of us know today.
Everybody just tells you to "get a lawyer".
Similarly, if you are ill, they will ask you to "see a doctor" as if looking at a doctor will make you feel better.
You will be surprised to know that some lawyers know less about law than you.
Here is what you need to know. What they say about the intent of the contract isn't material. What the contract language allows for IS MATERIAL.
The interesting thing about contract language isn't what we think it says, or they think it says. Again, not material. What matters is what that language can permit to happen under the influence of an experienced IP attorney.
What is worse is the management may well have the best of intent. None of it matters until there is something in dispute. The more that thing is worth, the less "good intent" matters. Count on it. That is how it all really works.
@Bruce, while you are technically right, as I mention above, the truth is having the reasons behind the sudden change in policy is smart business period. If they are going to sell, wouldn't that be great info to know NOW as an employee? There are many other contexts where that info matters too.
Edit: Oh Smile. I see where you already covered that. Yes, we all agree, it seems.
Re: Just get an attorney.
That is why I recommended a referral from the State Bar. If the first consult makes little sense, you can go back and repeat the process a few times. If that can be combined with a personal recommendation, all the better.
Just getting an attorney is a bad call. Getting the right one makes all the difference in the world. I've been through that cycle a few times, and the right attorney is a good thing, and when I have had to do it, I do the work to get a working relationship established so that I don't futz with it later on too.
On something as vague as this? Absolutely seek legal, particularly given the kind of people we are here, into all manner of things that could be seen as work related. It's hard, because personal development overlaps, and clear language makes a big difference. It's all about boundaries, and it's about setting them as much as it is being aware of them so that the right things can get done for the right reasons, no harm done.
Interestingly, operating without a contract can be just as ugly. If they were to retain legal to own something one of us did, they could end up with it for having superior resources, if nothing else. Getting the contract sorted isn't a bad thing in this light. And it appears that now is the time for Bean, unless something triggers him to walk.
Edit: I've put a query out there to my circle of people asking for best ways to locate a good attorney for this kind of thing and will put solid responses here when I get them. Just thought it a matter of general interest.
Is selling really such a big point? First of all, the above 'agreement' starts at the date of signing. Second, these people are prepared to quit altogether if they don't like what is going on. Third, one can renegotiate with new management by threatening to quit en masse.
Finding out why this is important is certainly useful. Ask the employer why they are upset? They may not be upset, but it is a good entry point that puts them on the defensive.
Of course, if there is something that we don't know about what the employees have cooked up - like starting a competing company in the future - they might best quit now and not sign. Is there really a future fortune at stake or has everyone just watched too many episodes of L.A. Law?
I suspect most lawyers that are providing a mere one hour consultation will say that you should just sign it if you want the job. And if there are problems in the future, please call.
In other words, the lawyer is not going to give any great deal of thought to this unless he sees quite a bit of work in it for him. It is just like the doctor that says 'Take two asprin and call me if anything changes. That will be $50 Mr. Jones.'
I would prefer to quickly sign a lousy, imperfect document under these circumstance than to bother with legal costs and negotiations over what might be if suddenly my smart pills are giving me inspired innovations.
If I really were to get a referral, I'd forget the State Bar - as those list just pick the guy that got to the top of the list, many times just starting out. I would ask my cousin in law school or someone who works in a law office as support staff. And if I want a good dentist, I ask a dental assistant. If I want good doctor, I ask a nurse.
And above all, the President of the local medical society, local dental society, or local bar association is not the best in town -- just has the most friends amongst his/her peers.
Selling could be a very big deal, depending on the terms of the sale and what the new owners see as both the vision for the company and employment terms and overall culture.
When a company sells it ranges from benign, no real change other than who signs the checks, to basically changing jobs.
On this point: "I suspect most lawyers that are providing a mere one hour consultation will say that you should just sign it if you want the job."
Absolutely true. One doesn't use the consult to get anything material done. One uses the consult to understand what the dynamics are and come to understand the scope of choices and cost trade-offs. From there, asking for a revision to better define the desired scenario isn't a lot of money, and doing that gets you educated at the same time, which is why I said "a few hundred dollars." Could be a bit more than that, depending.
I find this stuff is one of those, "works until it doesn't" kinds of things. Just doing the cheap or quick thing works, until it doesn't. And when it doesn't, the cost of that can very easily exceed what it would have taken to avoid the scenario in the first place... Been on both ends of that, good and bad.
Lawyers generally try to avoid educating their clients as best they can. They consider it a service, not a mentoring position. I suspect that most think that if you want a legal education you should take the LST and go to law school.
I thought the USA prohibited the sale of slave more than a century ago. You always have the right to quit. And you always have the right to not sign this.
I found that the more an employer tries to put into writing what an employee should do, the deeper the quagmire of unfulfilled expectations become.
But, in re-reading the Agreement, the last paragraph is rather heavily worded as it implies you will sign oaths for the company. It sounds as if they are going to push a new venture and expect to heavily create intellectual property, such as patents. I'd try to get clairification that what i do on my own time is my own property. If they want your mind 24/7, they should pay more.
Clearly you've retained some sub-par attorneys. The primary reason for seeking one in this case is education as well as any representation service.
With rights come responsibilities and implications. There are always costs for doing those things. The word "slave" is extreme, but there are employers who really do want to exert the maximum control and extract every benefit they can. Better educated than not in that scenario. Company sales can be particularly painful in this regard, though one always has some leverage. Might cost some to exert it though.
Re: Your last comments. Yep. That's precisely the issue with this one, and the lack of time limits on things.
Anyhow, it's not us faced with this. Just offering up my experiences.
I've had good and bad attorneys, accountants, dentists, and doctors. My dad was an M.D, and so was my grandfather.
The odd thing is that nearly all the good attorneys that I talked to never gave me a bill. They just solved the problem and said to call them when I had some significant work. When they did bill me, it was always cheaper than the bad ones.
The real problem is that most people seek out an attorney in a rather dire, uninformed fashion. Peers will not say bad things about their peers, it is likely to come back on them. Professional societies refer off of lists on a mindless first come first serve basis. But the people that work in the offices under them actually can give you a candid referral to the best guy in town.
Bean, I haven't read all the posts, so this may be redundant info: When I went to work for IBM I had to sign a very similar thing. No matter what I invented while employed by IBM, even it was done in my garage, on weekends, and had to do with breakfast cereals, IBM still owned it. I signed. It never ended up being a problem.
Later, with other employers, I found a lot of encouragement to do things on my own. At one place, it was a badge of honor for an employee to have a second revenue stream based on his/her own resourcefulness and inventiveness. Those who did, typically advanced faster than those who didn't. The contrast between such disparate policies always amused me.
No matter what I invented while employed by IBM, even it was done in my garage, on weekends, and had to do with breakfast cereals, IBM still owned it. I signed. It never ended up being a problem.
Well we saw the low budget documentary about how you used the invention to go back in time and prevent yourself from signing the NDA, so of course it wasn't a problem.
@Uawe Name
Was that way back when IBM would not hire anyone without a university degree and the job was supposed to be for life? Almost like becoming a Scientologist.
I have to admit that I have been away from the USA too long to have much to offer to this thread. Bean has been rather quiet. I hope he is getting some good ideas.
I was asked to sign something like this. Actually, something that went well beyond this. All that phrasing about ownership was there, and in addition to it there was "noncompete" language. I was initially reluctant.
Upon refusing to sign, I had a discussion of the CEO about what this was about and what his intentions were. He said (of course verbally) that he had no intentions of taking from me what I did on my own time away from work. He gave the nebulous "because this is good business" reason. I realized then he was pretty clueless and didn't have any specific reason for this. It seems like the company big city lawyer came up with this tripe. This cleared things up.
But I still asked for a raise, for the noncompete agreement part of the contract that I still think is not legally enforceable. Basically, I'm not allowed to work for a competitor in the same state. Plus I'm obligated to assist the company (on certain things like patent applications) up to 9 months after being terminated or leaving.
I did some research, and it's kind of bogus because you can't prevent a person from getting income to support himself.
Basically reading stories about how key people could leave Microsoft and work for Yahoo! and stuff like that. (or what's happening now is Apple is poaching Google).
Because I'm in a "right to work" state, it's hard to kind of assume there's any sort of contractual obligation for essentially anything beyond the company-employee relationship.
It's also why, because I'm in a "right to work" state, that I'll just walk in one day and get canned-- even though I'm expected to give 2 weeks notice to the employer, I expect to get 0 days notice when the day comes that I am to be let go.
So all in all, signing a legal quagmire 4 years into my employment hurt my view of the company. I now refuse to bring the Company's problems home (fair is fair, after all).
I don't get to charge my company to solve their problems on my personal equipment, after all. Basically I said by signing that paper that anything that I do for the company anywhere is theirs.
I wish company leadership realized these sort of things hinder their creative talent. As they are led to believe by lawyers charging hundreds per hour that this is best for them.
But to take my English language school idea further, I ended up working at my first language school for 7 years as one of the lowest paid per hour teachers. Other teachers demanded higher pay on a per hour basis and got it. The perception was their time was more valuable and they could freelance for the higher rate.
The end result was I was the highest paid on a per annual basis by the school. I was always the first to be asked to substitue when they failed to show up. The higher per hour guys, got less classes and spent much more time running around in weather and traffic to have privates provide them with added hours. Two of them ended up with serious disabilites from crashes in Taiwan traffic.
Meanwhile, I stayed indoors and wandered from classroom to classroom with better things to do on my free time than play road warrior.
But I do think that having some sort of profit sharing/stock options for significant creative efforts in a tight timeline are very useful and fair -- if you can get it.
One has to be careful not to negotiate themselves into a highly paid, under-employed independent contractor ties to a nasty non-disclosure agreement.
I want to thank everyone for their input on this issue.
We are having a lawyer draw up a similar contract with our issues spelled out. If the company still wants us to sign the original, we have decided to ask for a raise or be fired.
I too have heard that these are not enforceable, but there was a local DJ named "Bruce Bond" that was fired from one radio station. He left for a number of years, then come back to work for a different radio station and he was forced to quit by the non-compete contract he had signed with the first radio station. It is this case that really "spooked" us on the idea.
@Bean
Good luck to you, The economy isn't that good for electrionics these days. So I truly hope that this is not a ploy by the employer to downsize staff without having to offer signifcant severance packages for long-term service. After all, if I owned a business and had to cut half my engineering staff, I might want to find a way to retain those that would be willing to do more for less. I might have to offer a paycut in the future and that would be an even more difficult phase to negotiate with the most shrewd and ambitious of the employees.
These agreements are not all that unusual. In fact, we have one as well but it's only an NDA with a few statements about conflict of interest during employment. There's no language in it about extensive ownership.
The issue here beyond the agreement is that there's probably a lack of rapport developed between the employee and employer involving trust, respect and work done outside by the employee. If that relationship exists then both parties are comfortable and should be able to communicate about issues as they arise, and resolve them accordingly. In a time of distress the lawyers will only aggravate the opportunity for a resolution, increasing the cost and time significantly.
Since this seems to be a requirement, I'd just advise that the agreement be edited by Bean or his lawyer to say what he wants it to say, as was suggested above.
I would agree with half of Ken's last sentence. Bean, when it comes to things legal which can be long term impediment to your career moves, only have a lawyer write it or at least review the potential obligations. Consider if you change some of what you don't like. You put them (perceptually) over a barrel and they will not appreciate it. "See ya Bean". Sometime later, they need you to assist them in finishing something as per the agreement. Nothing in the thing regarding compensation for doing so, what if they think min wage is fair? Can you afford it? Can you afford to fight it?
I could be wrong, but better update the resume, you will probably be done by New Years. You will have marked yourself as not a team player here.
BTW: I was able to get some input on the matter, some of which I PM'ed to Bean. That wasn't much, just being a quick lay of the land look. But, the other input I got regarding locating a good attorney to retain boils down to this:
1. Use the State Bar to get referrals.
2. Network around with other known attorneys.
As noted, they generally won't put down their peers. Who would? I know I don't do that, working very, very hard to promote peers instead. The key there is to ask things that result in promotion type statements.
eg: "Who is the best?" vs "Here is my scenario, who do you know would be a great fit for us?"
3. During the consult, vet the attorney through ordinary conversation. One of my favorites to ask is, "Why should I proceed with you?" Through a horrible mistake, I was forced to retain a defense attorney. If you think this is rough, try that one on for size! (the case resolved nicely, no worries, but it was scary) That question proved invaluable. I had vetted three attorneys, and after all was said and done, the one I chose was highly likely the best one, and that question provided the info needed to do that.
Said I would drop that info here, and there it is. Not much, but there you go.
Comments
-Tor
Without any doubt, a contract is a two-way agreement, but if one of the participants holds firm to the initial wording of the contract, then you can change it all you want, but it won't be a binding contract until both parties agree on it's content. However, when contracts like the one shown are initially drafted, that is how it should be considered, a draft and nothing more, especially if both parties do not agree. In which case, the contract should be ammended until both parties can agree upon it's substance. But once again, HOWEVER, in an employee/employer relationship or contractual agreement, the employer usually has the upper hand, because the employees financial security can depend upon signing the agreement, as such is the case here. However that does not imply that Bean's employer is unwilling to negotiate the terms of the contract, nor does it mean that his employer is obligated to negotiate.
Bruce
In other words, this is boilerplate that was created as an example. And it may be written by someone that has all sorts of opinions that are not tied into your local laws. Also, it looks old in typeset. It is likely out-dated as well.
When I had to sign one, it actually was the most formal, best printed, and clearly detailed document in the employment package.
Why is all this important?
If so little thought has been put into using this, the employer may abandon following up on it at a later date. I've had to sign several store-bought boiler plate leases over the years and the general consensus is that they were far too one sided, violated actual law, and could easily be defeated by going to Small Claims Court.
People do these silly things just because lawyers are so expensive. Electronics is not the only realm of DIY. Also, if you are in a state that is based on English Common Law, you might find it very easy to defend yourself against such a document. But if you are in California, you just about have to hire a bevy of lawyers to challenge anything.
Without proper reference to whom the employer is and not counter-signed by a company officer, you might claim that you really thought it was for another enterprise than your present employer.
Basic business law requires everyone that is a party to a contract be clearly identified.
Sorry, Bean, if I used the actual company name! :0)
I had to sign something similar about 5 or 6 years back to continue doing work for one of my clients.
They wanted me and another consultant to both sign the agreement. We contacted an attorney and submitted a couple of revised versions that we felt better protected us.
Each time we submitted a revised version they countered with a MORE RESTRICTIVE agreement targeting the areas that we had sought to change.
Due to the economy at the time and the amount of work available our attorney ended up saying it was better to sign if we needed the work and "if we trusted the owner of the company".
To make a long story short, the reason they wanted the agreements was because they were selling the company to a much larger corporation, we didn't know this of course until a few weeks after signing.
They stopped working with the other consultant not long after the sale, his new job is in a different line of work, he hasn't ran into any issues.
They are still my largest client and hopefully will remain as such, if not I'm sure they will be ready to swat me with that agreement if they ever perceive any type of violation, valid or not.
Anyway, the main point I guess is to try to find out their reasons for wanting the agreement so you can base your decision on the most complete information possible.
C.W.
Please don't get upset with me, but I must disagree with this comment:
I believe the reason behind the contract has little meaning. It is the content of the contract that will be binding if signed, not the reason.
Bruce
When it came time to do the paper, all employment documents were in Chinese AND they offered no opportunity to have translated ones provided. I just signed, let them process me and put me to work. This went on for seven years with rather ridiculous rituals. In some cases, they have someone provide an English translation that made no sense. Work ended up being 7 days a week for the first 3 years and 6 days a week for 4 years after that.
At the end of seven years, I went to work for the Language Center in a university, but I was not required to sign a contract as I had acquired permanent residency and an open work permit. But later I shifted to another university and they too presented an all Chinese contract and a refusal to let me translate - just the requirement that I MUST sign the document.
I also worked part-time jobs on the side that had me sign documents that I couldn't read.
I realize this is all rather Draconian, but when you need the job, just sign the document and do as you please. If you are a reasonable and valued employee, it is likely to never become an issue.
Employers can be very unreasonable. The school I worked for, for 7 years refused to grant me leave when my mother was dying. So I quit. And after all those stupid contracts, the presented me with yet another to sign in order to quit where I was suppose to pay $25,000NT (about $750USD) for breaking the contract. This they said I must sign or I could not return to Taiwan. I just presented my permanent residency and open work permit (which I had not previously mentioned to them) and said 'Good bye'.
The first university didn't require a contract, but they also refused to allow me any vacation for 3 years. They would always have me working classes that started in an overlapping schedule. They also did not pay my health insurance as I was an out-side contractor (does that sound familiar?)
A lot of games get played by employers that are highly unreasonable. But you can bet that they will consider those that want to negotiate and revise as trouble makers. Let someone else take the fall. It really doesn't matter what is legal if you need the job.
It could have been worse, in the states I would have just had to wander from temp job to temp job.
lol, nothing to get upset about. You are right that the contract is all that matters in the end, my point was that I went ahead an signed because "I trusted the owner". Had I known they were selling the company I would have stood my ground on the changes.
So although the current agreement may not sound so bad given the context of Bean's experience with the employeer to this point, would it sound the same knowing some other large company was buying them out.
The current company may not have any products or interest in the area that Bean wants to persue on his own, but what if the new buyer being much larger does have an interest in the area?
C.W.
The plantiff in that case has his own web page where he describes the scenario, which can be found here: http://unixguru.com/
I must admit it was fairly interesting. Employee/employer contracts are a nasty business. I once signed a non-competition contract and it came back to bite me in the rump.
Bruce
We should keep in mind that it isn't just "Employeers Being Evil", a lot of these agreements exist because of employees making off with IP that the employer spent time and money to develop.
There is a big difference between learning how to calculate certain aspects of an engineered design and taking copies of software and spreadsheets developed by the employer to do those calculations efficiently.
Then again having the employer want to claim rights to your every thought even when those thoughts have nothing to do with their business is an issue as well.
There is a balance that needs to be found and that of course that is the hard part.
C.,W.
Retain an attorney. Call your local State Bar and get them to refer you for a free consult. You can take this and your concerns to them and for a few hundred bucks, get it modified so that you and the company are protected.
One thing that strikes me is, "What is the trigger event?" Are they thinking of selling? Did they get some fear and doubt put into them by somebody wanting to sell IP software or services? (likely scenario actually --I know somebody who does this, and initiating a contract like this is step one of many) It could be something as simple as a conversation they had which leads to, "you don't have those contracts??" Who knows? I would ask what the compelling event is though. That is good info for the attorney to use, and it helps you with context.
Before you say anything to them, get your attorney time setup and executed. If they press, ask nicely for some time and consideration, and make sure that amount of time is sufficient for your review, and one revision.
I would not sign that as is. Time limits on this stuff are perfectly reasonable. The reason? Job searches. It's that simple. Should you want to be employed elsewhere, for whatever reason --doesn't matter, each one of these you enter into limits job searches, and that's reasonable to limit. Expected too, and don't let them believe otherwise. 2-3 years is perfectly ordinary. More than 5 is unreasonable. 4 is pushing it.
Secondly, offering a revision to it is perfectly reasonable as well. Don't let them think otherwise. They retained legal, or worse just got some form somewhere. Let them know you are taking care of them and yourself. If this stuff is done, it really needs to be done right for your mutual benefit. Keep pounding that home, expressing your sincere desire to manage this EQUITABLY. (important word to use, so use it, because it's extremely difficult to argue with)
Thirdly, they don't really specify on their time and dime. They need to, or that language as written can be used to simply own whatever you do and it can be done on the most flimsy of claims too. The brutal thing about that is when that time comes, you are left in a very ugly position, requiring lots of time and $$$ to resolve, if you even can.
Do not sign it as is, without first vetting it through your attorney.
I know people hate attorneys. But, this is a fantastic time to develop a working relationship with one. Get a referral for an IP attorney from your State Bar, get your consult which will give you the lay of the land for nothing, then retain them to work through this with you. Do not worry about what management thinks about you doing that. As a working professional, reviewing a legal agreement with your attorney is commonplace behavior, and expected behavior.
Throughout all of that, bury your emotions on it. Hide them, and frame every single conversation in terms of your valued working relationship, eagerness to do this right and honor both your best career interests as well as theirs as a company you value working for, blah, blah, blah... You might hate that, but it will pay off very nicely with an agreement you can they can live with.
Then move on, no worries, no harm, no foul.
As a bonus, you also get the boundaries sorted out so that you can know for sure what is yours and what is theirs, which may well pay off better than any of us know today.
Similarly, if you are ill, they will ask you to "see a doctor" as if looking at a doctor will make you feel better.
You will be surprised to know that some lawyers know less about law than you.
I agree completely
Here is what you need to know. What they say about the intent of the contract isn't material. What the contract language allows for IS MATERIAL.
The interesting thing about contract language isn't what we think it says, or they think it says. Again, not material. What matters is what that language can permit to happen under the influence of an experienced IP attorney.
What is worse is the management may well have the best of intent. None of it matters until there is something in dispute. The more that thing is worth, the less "good intent" matters. Count on it. That is how it all really works.
@Bruce, while you are technically right, as I mention above, the truth is having the reasons behind the sudden change in policy is smart business period. If they are going to sell, wouldn't that be great info to know NOW as an employee? There are many other contexts where that info matters too.
Edit: Oh Smile. I see where you already covered that. Yes, we all agree, it seems.
Re: Just get an attorney.
That is why I recommended a referral from the State Bar. If the first consult makes little sense, you can go back and repeat the process a few times. If that can be combined with a personal recommendation, all the better.
Just getting an attorney is a bad call. Getting the right one makes all the difference in the world. I've been through that cycle a few times, and the right attorney is a good thing, and when I have had to do it, I do the work to get a working relationship established so that I don't futz with it later on too.
On something as vague as this? Absolutely seek legal, particularly given the kind of people we are here, into all manner of things that could be seen as work related. It's hard, because personal development overlaps, and clear language makes a big difference. It's all about boundaries, and it's about setting them as much as it is being aware of them so that the right things can get done for the right reasons, no harm done.
Interestingly, operating without a contract can be just as ugly. If they were to retain legal to own something one of us did, they could end up with it for having superior resources, if nothing else. Getting the contract sorted isn't a bad thing in this light. And it appears that now is the time for Bean, unless something triggers him to walk.
Edit: I've put a query out there to my circle of people asking for best ways to locate a good attorney for this kind of thing and will put solid responses here when I get them. Just thought it a matter of general interest.
Finding out why this is important is certainly useful. Ask the employer why they are upset? They may not be upset, but it is a good entry point that puts them on the defensive.
Of course, if there is something that we don't know about what the employees have cooked up - like starting a competing company in the future - they might best quit now and not sign. Is there really a future fortune at stake or has everyone just watched too many episodes of L.A. Law?
I suspect most lawyers that are providing a mere one hour consultation will say that you should just sign it if you want the job. And if there are problems in the future, please call.
In other words, the lawyer is not going to give any great deal of thought to this unless he sees quite a bit of work in it for him. It is just like the doctor that says 'Take two asprin and call me if anything changes. That will be $50 Mr. Jones.'
I would prefer to quickly sign a lousy, imperfect document under these circumstance than to bother with legal costs and negotiations over what might be if suddenly my smart pills are giving me inspired innovations.
If I really were to get a referral, I'd forget the State Bar - as those list just pick the guy that got to the top of the list, many times just starting out. I would ask my cousin in law school or someone who works in a law office as support staff. And if I want a good dentist, I ask a dental assistant. If I want good doctor, I ask a nurse.
And above all, the President of the local medical society, local dental society, or local bar association is not the best in town -- just has the most friends amongst his/her peers.
When a company sells it ranges from benign, no real change other than who signs the checks, to basically changing jobs.
On this point: "I suspect most lawyers that are providing a mere one hour consultation will say that you should just sign it if you want the job."
Absolutely true. One doesn't use the consult to get anything material done. One uses the consult to understand what the dynamics are and come to understand the scope of choices and cost trade-offs. From there, asking for a revision to better define the desired scenario isn't a lot of money, and doing that gets you educated at the same time, which is why I said "a few hundred dollars." Could be a bit more than that, depending.
I find this stuff is one of those, "works until it doesn't" kinds of things. Just doing the cheap or quick thing works, until it doesn't. And when it doesn't, the cost of that can very easily exceed what it would have taken to avoid the scenario in the first place... Been on both ends of that, good and bad.
I thought the USA prohibited the sale of slave more than a century ago. You always have the right to quit. And you always have the right to not sign this.
I found that the more an employer tries to put into writing what an employee should do, the deeper the quagmire of unfulfilled expectations become.
But, in re-reading the Agreement, the last paragraph is rather heavily worded as it implies you will sign oaths for the company. It sounds as if they are going to push a new venture and expect to heavily create intellectual property, such as patents. I'd try to get clairification that what i do on my own time is my own property. If they want your mind 24/7, they should pay more.
With rights come responsibilities and implications. There are always costs for doing those things. The word "slave" is extreme, but there are employers who really do want to exert the maximum control and extract every benefit they can. Better educated than not in that scenario. Company sales can be particularly painful in this regard, though one always has some leverage. Might cost some to exert it though.
Re: Your last comments. Yep. That's precisely the issue with this one, and the lack of time limits on things.
Anyhow, it's not us faced with this. Just offering up my experiences.
The odd thing is that nearly all the good attorneys that I talked to never gave me a bill. They just solved the problem and said to call them when I had some significant work. When they did bill me, it was always cheaper than the bad ones.
The real problem is that most people seek out an attorney in a rather dire, uninformed fashion. Peers will not say bad things about their peers, it is likely to come back on them. Professional societies refer off of lists on a mindless first come first serve basis. But the people that work in the offices under them actually can give you a candid referral to the best guy in town.
Later, with other employers, I found a lot of encouragement to do things on my own. At one place, it was a badge of honor for an employee to have a second revenue stream based on his/her own resourcefulness and inventiveness. Those who did, typically advanced faster than those who didn't. The contrast between such disparate policies always amused me.
Well we saw the low budget documentary about how you used the invention to go back in time and prevent yourself from signing the NDA, so of course it wasn't a problem.
Was that way back when IBM would not hire anyone without a university degree and the job was supposed to be for life? Almost like becoming a Scientologist.
I have to admit that I have been away from the USA too long to have much to offer to this thread. Bean has been rather quiet. I hope he is getting some good ideas.
Upon refusing to sign, I had a discussion of the CEO about what this was about and what his intentions were. He said (of course verbally) that he had no intentions of taking from me what I did on my own time away from work. He gave the nebulous "because this is good business" reason. I realized then he was pretty clueless and didn't have any specific reason for this. It seems like the company big city lawyer came up with this tripe. This cleared things up.
But I still asked for a raise, for the noncompete agreement part of the contract that I still think is not legally enforceable. Basically, I'm not allowed to work for a competitor in the same state. Plus I'm obligated to assist the company (on certain things like patent applications) up to 9 months after being terminated or leaving.
I did some research, and it's kind of bogus because you can't prevent a person from getting income to support himself.
Basically reading stories about how key people could leave Microsoft and work for Yahoo! and stuff like that. (or what's happening now is Apple is poaching Google).
Because I'm in a "right to work" state, it's hard to kind of assume there's any sort of contractual obligation for essentially anything beyond the company-employee relationship.
It's also why, because I'm in a "right to work" state, that I'll just walk in one day and get canned-- even though I'm expected to give 2 weeks notice to the employer, I expect to get 0 days notice when the day comes that I am to be let go.
So all in all, signing a legal quagmire 4 years into my employment hurt my view of the company. I now refuse to bring the Company's problems home (fair is fair, after all).
I don't get to charge my company to solve their problems on my personal equipment, after all. Basically I said by signing that paper that anything that I do for the company anywhere is theirs.
I wish company leadership realized these sort of things hinder their creative talent. As they are led to believe by lawyers charging hundreds per hour that this is best for them.
But to take my English language school idea further, I ended up working at my first language school for 7 years as one of the lowest paid per hour teachers. Other teachers demanded higher pay on a per hour basis and got it. The perception was their time was more valuable and they could freelance for the higher rate.
The end result was I was the highest paid on a per annual basis by the school. I was always the first to be asked to substitue when they failed to show up. The higher per hour guys, got less classes and spent much more time running around in weather and traffic to have privates provide them with added hours. Two of them ended up with serious disabilites from crashes in Taiwan traffic.
Meanwhile, I stayed indoors and wandered from classroom to classroom with better things to do on my free time than play road warrior.
But I do think that having some sort of profit sharing/stock options for significant creative efforts in a tight timeline are very useful and fair -- if you can get it.
One has to be careful not to negotiate themselves into a highly paid, under-employed independent contractor ties to a nasty non-disclosure agreement.
We are having a lawyer draw up a similar contract with our issues spelled out. If the company still wants us to sign the original, we have decided to ask for a raise or be fired.
I too have heard that these are not enforceable, but there was a local DJ named "Bruce Bond" that was fired from one radio station. He left for a number of years, then come back to work for a different radio station and he was forced to quit by the non-compete contract he had signed with the first radio station. It is this case that really "spooked" us on the idea.
Bean
Good luck to you, The economy isn't that good for electrionics these days. So I truly hope that this is not a ploy by the employer to downsize staff without having to offer signifcant severance packages for long-term service. After all, if I owned a business and had to cut half my engineering staff, I might want to find a way to retain those that would be willing to do more for less. I might have to offer a paycut in the future and that would be an even more difficult phase to negotiate with the most shrewd and ambitious of the employees.
The issue here beyond the agreement is that there's probably a lack of rapport developed between the employee and employer involving trust, respect and work done outside by the employee. If that relationship exists then both parties are comfortable and should be able to communicate about issues as they arise, and resolve them accordingly. In a time of distress the lawyers will only aggravate the opportunity for a resolution, increasing the cost and time significantly.
Since this seems to be a requirement, I'd just advise that the agreement be edited by Bean or his lawyer to say what he wants it to say, as was suggested above.
I could be wrong, but better update the resume, you will probably be done by New Years. You will have marked yourself as not a team player here.
Good luck,
FF
1. Use the State Bar to get referrals.
2. Network around with other known attorneys.
As noted, they generally won't put down their peers. Who would? I know I don't do that, working very, very hard to promote peers instead. The key there is to ask things that result in promotion type statements.
eg: "Who is the best?" vs "Here is my scenario, who do you know would be a great fit for us?"
3. During the consult, vet the attorney through ordinary conversation. One of my favorites to ask is, "Why should I proceed with you?" Through a horrible mistake, I was forced to retain a defense attorney. If you think this is rough, try that one on for size! (the case resolved nicely, no worries, but it was scary) That question proved invaluable. I had vetted three attorneys, and after all was said and done, the one I chose was highly likely the best one, and that question provided the info needed to do that.
Said I would drop that info here, and there it is. Not much, but there you go.