September 5, 2016 at 6:28 am
iposner (9/5/2016)
You don't need a lawyer to negotiate terms. Just try it yourself.
Sometimes employers/clients/etc. are more open to non-legal negotiations i.e. if you express your unhappiness with terms 3) 6) and 13) saying why then they might be amenable to changes that they then define themselves. I have seen that work.
Gaz
-- Stop your grinnin' and drop your linen...they're everywhere!!!
September 5, 2016 at 9:55 am
My experience was when our little mom-and-pop shop was acquired by a largish corporation. They called it a Property Rights Agreement and eligibility for the bonus plan required signing it. Sadly my colleagues gladly just signed without ever reading it. I did read it and I consulted a lawyer to confirm my understanding. Two major points which bothered me:
1) the agreement was retroactive to when I had started work for the mom-and-pop company, 15 years earlier. It gave ownership of every line of code, every design, document and inventions I had written since I started at mom-and-pop to the new owners. That included product from paid consulting work I had done on the side using my own tools (with the previous owner's knowledge and permission). Also, it was not limited to software inventions, but included any inventions.
2) the agreement included a clauses which said that it bound me even after I left the company and that the company had the right to go after my family and estate if the Company, in its sole discretion, decided I had breeched it in any way.
This was very much a heavy-handed boilerplate document which the company hoped to entice us to sign without reading it with promises of sweet bonuses. When I complained to my manager about this he dismissed my concerns as foolish. I persisted up the chain of command to the president with no success. In that process my manager finally admitted he had never read the agreement and, I suspect, neither had anyone else in the chain of command. At the VP level the VP said that I should trust that the company would never use the agreement to assert ownership of work I had done on the side. That raised further red flag for me. Eventually I came across an article by a labor lawyer about exactly the type of agreement I was being asked to sign and warning to be very cautious and suspicious of such agreements.
Having done considerable work on the side for my own customers I could not in good conscience sign over ownership of the work for which they had paid me so I never signed the agreement. Over the next couple of years I realized that most of the new company's HR practices were shoddy and some not entirely in compliance with labor laws and regulations - I am a former Certified HR Professional. We eventually parted company when they tried to cheat me out of 3 weeks earned vacation.
Contrast my experience with that of a friend of mine who was sked to sign an almost identical agreement with another company - she successfully negotiated changes to the agreement to get rid of the "we own all of you work regardless of whether we paid you to do it" parts. So there is hope, but if you run into a company that won't negotiate, think twice about joining them, especially if they say, "Trust us, it's no big deal to sign this."
A number of comments say that unfair NCAs which restrict your ability to seek other employment are not enforceable and that is true in Canada as well. However if you sign one and a former employer decides to go after you for breaching the agreement you may still have to hire a lawyer and possibly go to court to prevail. My advice is to read whatever agreement is involved very carefully and if you have any doubts spring for a quick review with a lawyer so you know exactly what your risks are. In my case this was important because I did consulting work on the side and I did have my own intellectual property and work product to protect.
September 6, 2016 at 7:23 am
I've only had one NCA. I just changed what I did and moved to another state for a couple of years. Then I moved back and went back to programming. So I complied with the NCA and everything was fine.
September 6, 2016 at 8:46 am
Here in the US, local state laws can limit non-compete agreements or subject them to a restricted interpretation. Whether a court will uphold a disagreement depends on whether the NCA is intended to protect the employer's intellectual property or whether it's an attempt to keep the employee chained to their desk. Generally speaking, contracts that attempt to restrain competition or an individuals freedom of employment are not enforceable.
"Do not seek to follow in the footsteps of the wise. Instead, seek what they sought." - Matsuo Basho
September 6, 2016 at 11:09 am
Many years ago I volunteered for redundancy (it was a case of that if you volunteered you got a fairly generous payoff but if did not you would be made redundant with government rules applied – i.e. far less monies). When I left Human Remains gave me a piece of paper to sign about IPR. When I read through it it appeared to be an attempt to control any future employment. My reply was that much of what I know is a product of my education and work experience, and that whilst I would as a professional keep their commercial information confidential my skill set was mine alone. Mr HR looked bemused and then gave me a wry smile and my cheque. I then went and had a few beers as I had something lined in a few weeks’ time…
P.S. I am in the UK...
September 6, 2016 at 11:17 am
mjh 45389 (9/6/2016)
Many years ago I volunteered for redundancy (it was a case of that if you volunteered you got a fairly generous payoff but if did not you would be made redundant with government rules applied – i.e. far less monies). When I left Human Remains gave me a piece of paper to sign about IPR. When I read through it it appeared to be an attempt to control any future employment. My reply was that much of what I know is a product of my education and work experience, and that whilst I would as a professional keep their commercial information confidential my skill set was mine alone. Mr HR looked bemused and then gave me a wry smile and my cheque. I then went and had a few beers as I had something lined in a few weeks’ time…P.S. I am in the UK...
What is "Human Remains"; the UK agency that handles pensioner claims?
"Do not seek to follow in the footsteps of the wise. Instead, seek what they sought." - Matsuo Basho
September 6, 2016 at 11:29 am
When I first started work there were Personnel departments that were interested in people's futures and career development. Over a few years this morphed to Human Resources many of whom treated people just like another commodity; PCs, cars, etc. Their attitude just winds up many people and the term Human Remains came into being about a decade ago!
September 6, 2016 at 12:05 pm
I've rewritten every NCA/NDA that I've been told to sign as a "condition of employment" because they are entirely too restrictive. If I followed most as the letter of the law, I wouldn't be able to write T-SQL for any other company ever again.
Oddly enough, most of the companies have agreed with my rewrite. Unlike the original, I do make it fair and reasonable.
--Jeff Moden
Change is inevitable... Change for the better is not.
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