Hacker News Reader

Comment by ryandrake | Hacker News Reader

It’s unfair that companies, who have extremely high power in the relationship, can load their contracts up with one-sided and often unenforceable stuff. Employees, who are the party with low power, must accept the terms or GTFO. Then the onus is on them to spend their time and money fighting the legal battle to invalidate these unenforceable bits.

Wouldn’t it be fairer if the party with all the power, and who dictates the content of the contract, must convince a judge that it’s enforceable before a defendant has to lift a finger or shell out money?

Currently contracts seem to be nothing more than one-sided weapons that powerful companies use to get vulnerable people to do things that they otherwise wouldn’t and can’t afford to fight. Let’s not pretend that more than a small fraction of employees out there actually get to meaningfully alter the contracts under which they work.

View on HN

I think this could be solved by outlawing severability (where if one clause of the contract is junk, the rest still stands). That would make the contract written in a much more careful manner, and make those junk clauses a liability for the entire contract.

Not a lawyer though, so happy to hear the flaws in this.

What if you make an honest mistake in the wording? What if the contract is complicated and you end up having part of it invalidated in court? What if the law changes, making part of your contract unenforceable?

There are so many good reasons to not outlaw severability, whereas outlawing it is a poor solution to one specific problem.

Put a hard limit on clauses that may be severed without invalidating the entire contract. Two, perhaps. Three strikes, and you're out.

>What if the contract is complicated and you end up having part of it invalidated in court?

Sounds like a feature, not a bug. Contracts have to be simple. If you can't do the transaction with a simple contract, you have to find a different method to carry out what ever is desired to be done.

I'm sorry, but this is a ridiculous statement. This isn't just about labor contracts. Contracts between businesses need to cover lots of different eventualities and edge cases. They need to acknowledge and adhere to a variety of laws, depending on the jurisdictions involved. Disclosures must be made. Eventualities must be planned for. Nobody (for the most part) wants to go to court to resolve something that could have been headed off in a contract.

Whether it's in the contract or not, you have to go to court to enforce it. There's no other authority.

Perhaps contracts between businesses and individuals, or even just businesses and consumers, should follow different, simpler rules than contracts between businesses - especially mega-businesses?

Let businesses with hundreds of staff attorneys do whatever they want to each other. But keep them from beating up a guy who just wants to collect a paycheck or buy a simple service.

Obvious flaw:

I write a contract with you: you will deliver me a "widget" in 6 months, at which point I deliver you $300,000. This contract is negotiated in good faith - we both at the time believe it is a good deal (this is important, as lack of good faith is a different issue). It turns out that after 6 months I don't need the widget like I thought I did, and fortunately for me there is a clause that I now discover is illegal. Now you have a widget neither of us want, and are don't have money to show for your last 6 months making it.

That's the point: to make you view each clause as a liability rather than something to stuff in there just in case it turns out to be useful.

In this example, though, the "liability" works out in the company's favor, since they can unilaterally terminate the contract if they realize a clause is unenforceable. It makes it even more important for the party with less negotiating power to thorougly understand the contract's legality.

You price risk into the contract or buy insurance.

There is no law preventing parties from negotiating in good faith either. If circumstances change, people usually adapt.

I know that in France the unions are mostly doing contract review. They have their little desk, and employees come see them after they have been wronged by their employer, and the union member spends hours with the law books reviewing the contracts, various written interaction and timeline of event. People think of them as mostly organizing strikes or demonstrations, while most members spends their time reading laws and contracts. When they start seeing a new illegal trend, they blow the whistle publicly.

> Currently contracts seem to be nothing more than one-sided weapons that powerful companies use to get vulnerable people to do things that they otherwise wouldn’t and can’t afford to fight.

That totally hits the issue on the head. They're not negotiated contracts. They're one sided hammers.

Indeed. If there is no downside to stuffing contracts with every potentially useful clause they can think of, then why not do so?

Perhaps the solution is to give workers the right to have employment-related contracts reviewed and negotiated by an attorney of their choosing at the employer’s expense.

With actual costs attached, employers would suddenly have an incentive to keep their contracts as short and simple as possible, reserving the more onerous clauses for only the most senior positions.

Contracts for most positions would need to be kept short, reasonable, and comprehensible such that candidates don’t feel the need to exercise their right to attorney review.

> Perhaps the solution is to give workers the right to have employment-related contracts reviewed and negotiated by an attorney of their choosing at the employer’s expense.

This is one of the key reasons that unions are helpful to workers: each one of them doesn't have to go through this on their own. One expert does it for all of them.

> Currently contracts seem to be nothing more than one-sided weapons that powerful companies use to get vulnerable people to do things that they otherwise wouldn’t and can’t afford to fight. Let’s not pretend that more than a small fraction of employees out there actually get to meaningfully alter the contracts under which they work.

A straightforward way to address this could be through standardized contracts/clauses for mass markets. In the world of software understanding is not free, and the world of ambiguous natural language legalese is clearly even worse! In a market big enough to have many parallel participants, each clause of an agreement should be selected from a standardized bag such that online reading can readily explain your rights and responsibilities.

For the most part, this is already somewhat done through state "employment law", "landlord-tenant law", and the like. But then we get the OP situation, as well as contracts that actually attempt to countermand the law - I recently had the pleasure of reading a lease that was essentially an anti-tenant screed.

From the other direction, it also would be nice to voluntarily be able to give up a currently "standardized right" - say I don't need hot water in my apartment for savings of $100/mo. Assuming it was truly consensual and not just setting up a race to the bottom - percentages quotas or the like could address this.

This would be incredibly hostile to small businesses. Now you need to waste even more money on lawyers and tons of time navigating useless government bureaucracy. Big companies will be able to comply with any regulation thrown their way, but I don't think you can say the same about smaller shops. Your solution is penalizing good actors as well.

I can just imagine it now: Oh, we want to hire you but it looks like the next available turn for contract reviews is 1 month from now. Sorry, looks like you'll have to sit around without making any money in the meantime.

A judge's time is generally quite expensive, and handling the massive load of contracts would likely require appointing a lot more judges.

What if both parties are fine with a contract? Why should they be forced to get the government involved? And if both parties decide to re-negotiate a contract, do we need to go through the whole government approval process again?

I agree that there are issues with some employment contracts, but you are making some incredibly broad generalizations focused on a few bad actors without taking into consideration the broader consequences.

> This would be incredibly hostile to small businesses. Now you need to waste even more money on lawyers and tons of time navigating useless government bureaucracy. Big companies will be able to comply with any regulation thrown their way, but I don't think you can say the same about smaller shops. Your solution is penalizing good actors as well.

This would encourage shorter and simpler contracts, making things easier for both the parties and any involved judge.

> What if both parties are fine with a contract? Why should they be forced to get the government involved? And if both parties decide to re-negotiate a contract, do we need to go through the whole government approval process again?

Because, as the GP mentioned, it is not an agreement between equals.

I have no sympathy for a small business that includes unenforceable terms in a contract and I'm not sure why you are considering them a "good actor".

That’s why we have/had unions.

Why the hell is this being downvoted? Collective bargaining is one of the primary purposes of a union

A lot of workers do not like unions for many reasons (not a valid reason to downvote, but it's probably why.)

It's possible that mafia gains control of a union, think Jim Hoffa. That of course is not the purpose of labor movement.

It's a bit like marriage you have to pay a bit for it but having someone support you and fight with you is worth the commitment. Unite!

Its also possible that the mafia (or mafia esque tactics) gain control of businesses too.

> Employees, who are the party with low power, must accept the terms or GTFO.

I have successfully asked for some clauses to be removed from the contract.

As have I, but it requires a certain level of confidence and market position (and the knowledge that you can).

A better world is one where this doesn't...yanno...happen at all, yeah?

Sure, a relatively small number of employees have this ability, due to market demand or whatever, so congrats! If you want to feel what it’s like to negotiate employment as a more usual employee, try negotiating the terms of your cell phone contract.

He said he got his, what don't you understand.

He' what's wrong with America, BTW.

I disagree. It is not a better world to prevent people (employers) from doing things that they wish to do, that willing consensual partners in those activities do not object to.

If you don’t want this to happen in your own life, then don’t sign such contracts. Leave other people to their own business. You are not their parent.

This is spoken from a position of privilege. We, as highly skilled tech workers in a field where demand outstrips availability, with probably a solid rainy day fund accumulated, we can afford to say no to a contract because we know the next is round the corner and we know how to feed family until then.

A large chunk of the workforce does not. They depend on the paycheck, need to feed people that depend on them and in their case, the employer holds all the cards. They more or less must sign. Even if they have another option lined up, for them it’s probably the choice between bad or worse terms.

That's not what the word privilege means. Having marketable skills isn't the result of privilege, it's the result of education and work.

It's just basic supply and demand. A job that anyone can do is going to have a larger labor supply than a job that few people can do. Employer demand is also a factor. Right now truck drivers are getting very lucrative offers because demand is so high, despite the relatively low skill level. Also risk factors, especially risk of death, can drive compensation sharply higher. For example working on live natural gas pipelines or deep sea welding isn't particularly high skill, but the compensation is huge because it has a tendency to lead to death.

You're right. We should let people (employers) employ young children to do dangerous work. As long as the dirt poor parents consent, then it's OK right?

If those people don't want their kids in this situation maybe they should try being not poor. You feel me?

Hold a gun to someone's head and act like they have a free choice when they decide to do what you demand of them.

You focused so much on making a sarcastic comment that you ended up not even making sense. The person you're replying to specifically said a consensual agreement between the parties involved in the activity. How does that have anything to do with parents forcing their children to do dangerous work for someone else? Maybe try and comprehend what you're reading before hitting the reply button, it'll help keep you from looking like an ass.

Hobson's choices are not meaningfully consensual in the first place; the sarcasm used reflects this.

Your point being, a huge imbalance of power makes mutual consent meaningless.

Yeah, no. You're completely ignoring the vast power imbalance at play here.

And I care far, far, far more about the employees, than I do the employers.

I once got put under a similar contract, while I was employed. (part of a merger). The alternative was to be out of a job with a pregnant wife. I later talked to a labor lawyer, who told me it was essentially unenforceable, and he was >95% certain I would win, but the contract also stipulated that it would be tried in NY (A very far away from me place) and that it would probably cost me $5k-$10k to defend it.

What, negotiating?

The balance of power involved makes is inimical to negotiation for many classes of employees in the United States. And because people are more important than businesses, this is something of a problem.

Yeah. I just don't understand your comment. The company and the employee both need to have some power to define the job role and compensation.

I agree.

As it stands, the employee, barring fairly singular instances (and, I note, I am one and I have hired them, I understand where the line goes), has no power.

They have a Hobson's choice not merely with one employer but with all of them.

Ok so, wouldn't you want this situation to come up more often, where a prospective employee can get the contract changed? You said you'd rather not have this happen at all.

Except that it won't happen more often because that power imbalance exists. I have some power when negotiating because I'm experienced, I'm very good at something in extreme demand, and I'm knowledgeable about how a business works. Most people don't have two or more of those things.

You describe a senior and socially competent tech worker's delight. Some of us have empathy for those who are not. "Oh, but more people with no market power can 'negotiate'" is not a net benefit for people even if it was a beneficial situation for me.

"In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."

100% agree. I think a disproportionate number of the people on this site work in high paying, high demand fields and it gives us a kind of warped view of what the job market is like.

Anecdotally, I know someone who had a non-compete clause in their hiring contract to work as the desk attendant at a hotel, in California none the less. This is basically a minimum wage job in a state where non-competes are illegal statewide.

Sure, my friend could have asked for it to be removed, but that would mean delaying the hiring process and extra work for the hiring manager who now has to go through the legal team to make any changes to the contract. When there are 20 other equally qualified candidates, why would the hotel waste their time? It makes more sense for the hotel to just find someone else who is willing to sign the illegal contract.

And why would the hotel ever waste their time and legal resources enforcing a non-compete on a minimum wage desk clerk when they can just hire another one tomorrow?

Non-competes in that situation are empty threats to keep workers who don't know any better from quitting.

I agree that they're empty threats in the general case.

They should be banned to protect workers from the off chance that somebody decides to follow through.

Explicit, not implicit.

Oh, I totally agree it's an empty threat, but many workers don't know that.

It's kind of fucked up though that putting something obviously unenforceable in a hiring contract isn't being punished. Either the worker ignores it, knowing there's nothing the company can do, or they take it seriously and are afraid to quit to go to a competitor. It's pretty much no lose for the company though.

Are you a skilled worker. I have to, but I work in tech and get paid a lot. Your average truck driver or metal worker is not going to be in the same spot. Even in my field, there are some companies I had to work away from because of their contracts. If I was desperately poor and had no savings, I wouldn't have that option.

One anecdote does not data make. The fact of the matter is, most people are not in a position to ask for any changes to the contract.

Alot of people have been unemployed for quite some time and certainly aren't going to be able to negotiate that. I mean what are they going to do if it doesn't work out? wait another 3 years for another job.

Why do you think employees have less power? Both parties have exactly the same power: to kill the deal. Contracts only happen by mutual consent.

Yes. But that’s not the point. The point is that the leverage of both parties entering the negotiation is in most cases very skewed.

If you have the money/family support... If you are young enough... If you are not a woman... Add any minority to the list as needed. You can't always afford to turn down a job offer.

Employers have a much larger pool from which to choose employees than the pool of employers from which any one employee may choose.

In addition, the majority of employers have (either by coincidence or agreement) landed on a similar set of crappy and unreasonable contracts. For the vast number of employees out there, it's either submit to the contract or remain unemployed.

Yes, and yes, and don’t forget: employers tend to have ready access to legal advice which is too expensive for the average employee. Our legal system gives strong advantages to entities the more they can afford.

Not to mention the impact of not signing a contract is much higher for a person than for a company.

In many cases, employees are replaceable cogs who can be done without for the brief period before being replaced, while employment is vital and the absence of it for even short durations can be life-threatening.

Software is a rare exception, not the rule. Even then, people like me who have enough savings to live for over a year without a paid job (looking after a parent with Alzheimer’s in my case) are a tiny minority.

Power is not measured by your ability to walk away from a deal, but by your next best alternative if you do walk away.

Lets not pretend like every deal not made at gunpoint was some how made by parties of equal power.

Because if you can't buy food and shelter, YOU DIE. The company's worries are less severe.

If a company can't hire when they need it - they may die just as well.

Although I must admit, it's not correct to compare human life with a corporate entity's existence.

Because they absolutely do. A company that loses an employee likely isn't going to suffer. A person that loses or cannot get a job absolutely is.

"Contracts only happen by mutual consent."

That's not true in the least. When your alternative is to starve, one cannot really call that "mutual consent".

Reply on news.ycombinator.com