March 11, 2008 at 7:50 pm
Comments posted to this topic are about the item NCAs and NDAs
March 12, 2008 at 7:53 am
My experience has been that most of the time, NCAs are almost completely onesided to the company.
I was attempting to transition from being a W-2 employee to a subcontractor at one company. They gave me a copy of the agreement to review, which I took to an attorney because it was so onesided. We revised it to be more fair to all parties and sent the agreement back. A couple days later the company returned a copy of the revised agreement with literally ALL of our revisions marked out and reverted back to the original agreement. Oh, and at that point they wanted to "start" the negotiations. It only cost me $1500:sick:
Thankfully, their HR staff wasn't entirely on the ball when they hired me and did not have a NCA on file for me. Needless to say, I didn't remain with that company.
While this isn't exactly the same scenario, it falls in line with most of the NCAs I have read - the company would rather you take all the risk...
March 12, 2008 at 7:58 am
I've actually had some reasonable NCAs, especially when negotiating with management. My experience has been the lawyers typically present these worst case scenarios, and end up trying to get things heavily in favor of their clients.
March 12, 2008 at 8:13 am
I agree that the attorneys are definitely "doing their thing" to weight it towards the employer, but ultimately, shouldn't it be the employer who looks at it and says, "Hey, this is a little over the top," instead of just being led around by the attorney?
I did sign a NCA with another company that was very fair to both parties, but this was the exception to all the others..
March 12, 2008 at 8:30 am
It is ultimately management's responsibility to find a balance (and yours), but having been through some long negotiations when selling this site, I'll tell you that it's hard to be reasonable. You have to trust that the other side will meet you halkway if something happens that forces you to use the agreement and I'm not sure that it's possible to have that trust.
It's too easy to think that one might put their own benefits from an action ahead of what's morally right.
Suppose you negotiate a loose agreement and you get a contract working on the same type of technology or on the edge of the same city. If it's not well defined, then you might not want to adhere to your side of the agreement since your interpertation might be different, or you can justify it. Same for the company.
I wish it were different, and I'm not sure how you get around this, especially as most of the time we don't know the people we are in business with all that well.
March 12, 2008 at 8:40 am
NDA's should almost be in place everywhere in our industry. My customers trust me, and our company, not only with their data but with their plans and policies. Often we will know a companies plans before their employees do. Keeping the data structures ahead of the business rules cuts costs overall. Some of our customers come to us to help form the plans. In one case we actually have direct competitors as clients.
I had an NCA with a company that basically meant that I could not work in this industry for many years. There was a clause about "potential customers". Sure I could not go to work for any of them directly, that's OK. But it went on to say that I could not work for anyone that did business with any "past, present, or potential customers". Hold on a minute. I got the VP of HR into a corner at a company party and "advised" that this would not stand in court. I said, "And you have over 800 of these in place?" She agreed that it needed revision.
ATBCharles Kincaid
March 12, 2008 at 8:41 am
NDAs are also common for employees of government entitities. I work for a tax administration agency and we have to sign a nondisclosure agreement with annual refresher training on ethics (including a reminder of the penalties for disclosing or using taxpayer information!)
Greg
September 28, 2012 at 1:49 am
In the UK employment law prevents an NCA restricting a person's employability.
My NCA and employment contract says that I cannot work for a competitor in the specific line of business within a 40 mile radius.
If a company wanted an NDA restricting a person's employability then in effect that person would remain on the company payroll on "gardening leave" or "on sabbatical".
When I worked for a local council I had to sign the official secrets act. Even at the height of the cold war I can't imagine that poll-tax rates and refuse collection days were of much interest to the KGB. Excessive regulation leads to contempt for the regulation.
There is the spirit of the law and the letter of the law. We all understand and respect the spirit. The letter of the law is to ensure that the spirit is quantified and implemented fairly. Where the letter of the law fails to implement the spirit of the law is undermines the principle of law.
September 28, 2012 at 2:06 am
Uk law has certainly improved on this. Back in 1978 as a fresh computing graduate leaving university, I turned down a job with a software house mainly because I was scared of the NCA which would have prevented me getting a job with another software house in the UK. It turned out to be a good move as I got a job with another software house that I liked better and was in a better location!
NDA is part of our job here - we have to do annual data handling training and pass the online test at the higher levels.
October 1, 2012 at 5:45 pm
I have had them presented we have negotiated and have come to agreement. Some time it appears onesided, and because of the business and timing thus it should be. Other times it has been more open. Each worked, or are working. It is like salary and other terms and conditions, we find what works and work it. If something has to be adjusted you ask, otherwise you complain and leave, not good.
Not all gray hairs are Dinosaurs!
September 5, 2016 at 1:21 am
In England & Wales (Scotland and NI have their own laws albeit often in line with the rest of the UK but I am unsure about this point) the whole of a contract must be deemed to be fair to all parties. Thus if you sign an unfair contract (e.g. a NCA or a NDA) the parts that are deemed unfair are not enforceable. The rest remains in force.
David has already covered the restriction of employment but it isn't limited to that (which was not David's point, I am just highlighting the genericity of the fairness element).
All this makes it difficult to have a really bad NCA or NDA in England & Wales. Of course, it may cover other legal jurisdictions but this is usually specified in the contract.
Gaz
-- Stop your grinnin' and drop your linen...they're everywhere!!!
September 5, 2016 at 2:02 am
English law precedent is that non-competitive clauses over 6 months are unenforceable. Furthermore, any clause that effectively prevents a person from practising his profession is also unenforceable.
September 5, 2016 at 5:33 am
Has anyone had any experience of an NDA/NCA being enforced?
Yes we sign these things up front but what happens from a practical stand point if they are breached? Not that I am suggesting that we do but I have come across an incident where sale was made under NDA and it was very much breached but I cannot recall anyone in authority saying "hang on a minute, you've just broken the terms of this NDA".
If these things are breached you cannot unbreach them. Once a commercially sensitive item is revealed the secret is out.
I suppose the judgement call becomes as to whether the cost of litigation exceeds the total damage that will be accrued.
In terms of negotiating changes to a corporate NDA applied to a potential employee the cost to the employee if they use lawyer's to negotiate a change is very high.
Jarndyce and Jarndyce comes to mind where a disputed will for a massive family fortune resulted in the entire fortune being boiled away in legal expenses.
I think I'd take the approach that if you don't ask then you won't get, but don't be disappointed if you don't get any movement particularly if you are negotiating against lawyers being paid not to compromise.
September 5, 2016 at 6:21 am
You don't need a lawyer to negotiate terms. Just try it yourself.
September 5, 2016 at 6:22 am
Never had one enforced but I have never breached one either. Most NDAs and NCAs seem reasonable and when a reasonable deviation from an enforceable has been discussed then I have seen a release negotiated. This is often on the NCA where it may or may not have been enforceable but both parties wanted to part on good terms and neither was going to take an unfair advantage. In some cases garden leave has been used to ensure that no commercial advantage has been lost/gained.
I am aware of one enforcement and that was an expert in a small (non-IT) field who took his employer's client list and formed his own company and attempted to take the clients with him. Arguably the client list was corporate theft but it was dealt with as a breach of the NCA and he almost lost his home. It was driven by pure greed.
Gaz
-- Stop your grinnin' and drop your linen...they're everywhere!!!
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