Pushing back against contract demands is scary but please try anyway
blog.plover.com
blog.plover.com
First, don't edit the proposed contract itself. Instead, add a rider that specifically overrides the provisions you don't like. Something like "Intellectual Property. Work produced by employee shall be considered work-for-hire. 'Work" is defined as..." Then add a line to the bottom of the rider that says "If any portion of this rider is in conflict with the main contract, the terms of the rider will override the terms of the contract." The benefit of this approach is that you avoid the back-and-forth niggling over particular words in the main contract, and you often overcome the other party's resistance to changing the language their lawyers said had to be there. It's stupid, but it works.
The second technique is simply to say, "this contract isn't large enough to justify these provisions. If you would like to bump the contract, we can talk. Otherwise, no." This has worked for me in negotiating software licenses. I haven't tried it in an employment situation. It works because it forces the other side to acknowledge that their demands have costs, and they can have what they want only if they pay for it. They never do.
I am not a lawyer. Heed this advice at your own risk.
If the main portion of the contract says "all additions are invalid", and an addition says "this addition overrides the main contract", which one wins?
Bell?
One of my favorites was "This sentence has cabbage six words". It's accurate! It's... almost well-formed! You have to fix "This sentence has six words" somehow, right?
to quote the great Churchill, when someone suggested that one should not end a sentence with a preposition.
You obviously can't do this if everything is electronic. You've got to reject electronic-only contracts outright.
This seems excessive. Yes, incorporation is a thing. But if you’re getting a rider with a supremacy clause signed at the same time as the main contract, the company is going to have a hell of a time arguing the latter is moot.
Pretty nasty for a regular contract but maybe there are cases where this is ethical...
There is a difference between what is written on the lease, and what can actually be enforced. The lease is not just one giant legal document. It's a series of hundreds or even thousands of individual components.
Let me give you my real-life example:
A few years ago, I signed a lease for a rental in California. Two things (clauses? not sure what the legal term is) in the lease are the key points for my anecdote:
- A lease break fee equal to half a month of rent
- Something about tenants being responsible for any legal fees incurred by the landlord/property owner
I broke my lease, and the half month of rent was taken out of my deposit. I moved out a day early. My landlord had immediately found a new tenant who wanted to move in that day, so it worked out for both of us.
Then my landlord did two things which really upset me and led to me spending ~20 hours over the next month or two reading about real estate laws and consulting multiple lawyers.
- He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit.
- He did not refund my deposit for nearly a month. When he did, it was $150 short of the reduced amount that I had expected. He didn't have an explanation for why, and wouldn't send it.
This led me to lots of googling, and discovery of the following:
1. The idea of a "lease break fee" does not exist in California landlord/tenant laws. It is not legally enforceable. If a lease has one, it doesn't actually mean anything. If I had broken my lease without the landlord's permission, he would not have been entitled to any damages, since he filled the vacancy immediately at an equal or greater monthly rate.
2. Landlords must return a portion of the security deposit within 21 days, with itemizations and deductions. If nothing is returned within 21 days, they must return the full amount, even if deductions are justified. If the matter goes to court, the concept of "treble damages" comes into play. A tenant could get up to 3x their deposit back, depending on how the judge feels (probably a gross oversimplification of small claims, but maybe not).
3. The clause about being responsible for legal fees actually goes both ways. My landlord would have been responsible for my legal fees on top of treble damages if we went to court. There is no way to know this based on just reading the contract, and not having an understanding of laws as they are on the books AND legal precedents for prior similar cases in California.
My landlord did not budge on returning my money when I texted him summaries of the above and links to evidence. He did budge after receiving a letter from a lawyer explaining everything in a more threatening tone.
I was ultimately not out anything but time, since I have a legal plan that I pay for on an annual basis. This was the perfect situation to use it, but it was still more work.
I do want to note something about the legal fees clause. I am pretty sure I am the first tenant who ever pushed back on it to my landlord. I don't know what the term for this is, but that clause has a very strong implication. At first glance, it seems to say "even if you're in the right, if you take me (the landlord) to court, you will have to pay for my lawyer, whether I win or lose".
This is what I thought it meant, and I wonder how many tenants who have been wronged in the past see a clause like that, and it just eliminates any ideas they may have about trying to enforce their tenant rights because they see it as financially impossible.
If I had to pay out of pocket for lawyer consultations and the letter, it wouldn't have really been worth it either. I would have roughly broke even. I would have done it anyways, though. I hope my former landlord will get deposits back to people on time in the future. Though I suppose he might not be willing to let people break their leases anymore, either.
I'm pretty sure he was overcharging on utilities, but I didn't push it at the time. I've been considering reporting him to the IRS because he illegally declared the home as his primary residence while not residing in it, which I found out from the title report. I'm not sure if anything would come out of it. I would bet a limb that he wasn't reporting any of his rental income.
Which leads me to a final thought: leases in California primarily benefit the tenant. You should never be afraid to break one IF the following is true: you know the landlord will be able to fill the vacancy if they put actual effort into it (they will need to prove as such to collect from you if they want to be lazy or spiteful), and the amount of time and money you would potentially spend in the worst case is less than whatever you would be responsible for in a scenario where they don't fill your vacancy, and they convince the judge that they tried really hard and they just couldn't do it (unlikely).
That is some combination of organization and willingness to spend time really sweating the details that far exceeds my own.
“What’s in this box?” “Oh, that’s my catalog of burned out light bulbs.” “Why do you have a catalog of burned out lightbulbs?” “Well, I’m not going to live here forever!”
I’d want to take those with me.
Also as a landlord you don't need a rental unit to be a primary residence anyway, because you can actually deduct way more than just your mortgage interest, and the property taxes I think are deductible as a biz expense that is independent of the $10k personal SALT limit too, so there is no incentive to do stuff like that unless the income was unreported also.
The subscription (legal plan) brand itself is irrelevant. What all legal plans have is a network of contracted set-rate of fees for lawyers, to the benefit of their members. Not sure if the lawyers themselves get subscription fees or its fee per service, but either way the brand acts like a customer leadgen into pricier products/services.
The hard part is actually finding a good lawyer. Lawyers under the exact same legal plan can be wildly different.
By far the #1 thing to do when using legal plans (via company-provided benefit) is consulting with coworkers about their interaction with a lawyer.
Yelp/google may not be as useful because often they will reflect the feedback of a fee-paying customer
At a previous employer this was one benefit you could sign up for along with health insurance. I never used their services, so I can't say if they are good or bad.
They did a thing that was like a nurse line where you could just chat with an attorney about specific or general items. My plan did stuff like contract/lease review, real estate, traffic tickets, and other stuff.
Several services were included and a bunch of others were an additional, scheduled cost. I believe it cost ~$100/year, with additional (very reasonable) riders for adoption, elder care, etc.
That said, the author of Nginx was sued by his former employer who tried to lay a claim to Nginx itself. So companies can and will pull a fast one -- hire an employment attorney if you are, or are afraid of finding yourself, in this situation.
So many contracts contain what I call “rights grabs”. They are attempting to transfer my IP to them for maximum profit. I’ve fought this trend with success for decades.
I simply cross out the offending language in the contract and make the license contingent on the agreement proceeding as I describe. I’m happy to abandon a contract if it does not go my way (a luxury not everyone has).
My largest checks in the past two years have been from lawsuits brought against copyright infringement. In every case my contract revisions have withstood legal challenge and the defenders/offenders have folded when they proceeded as if the original contract language (before I altered, after they signed) stood.
There are lawyers who have pursued this niche to great success and I have lawyer team ready to pursue infringement on a contingency basis. It is quite amazing.
More than once now, my lawyers have fought for years when the infringers had deep pockets and a terror of precedent. They paid so many thousands to their legal team but lost. I have prevailed in every case.
I recognize this is bragging. But so many of my colleagues have just signed for a short term check while losing in the long run. I might be an obstinate fool, but so far it’s paid off.
We in the photo biz have had to survive a huge paradigm shift in the biz model in the last 18 years. But so many people fold for Pennie’s. “I need this $250 right now to make rent”. But my settlement checks are in the $25,000 range typically (25% after my lawyers and agent get their cut).
Last I looked, the average income for a photographer in the U.S, was around $7500 a year. Yes, $7500 (no missing zeros). I make six figures consistently and I’m damn proud of this fact.
Most of the conversations on this forum are above my skill set, but you folks are generally paid for deep knowledge and rare skills. Don’t let anyone steal this from you.
Just a different type. Interesting insight.
Funny, I don't. Seems to me you are inspiring others by sharing your track record and the care and struggles you took to pull it off.
And you present it with respect for the skills and experiences of others.
He imagined himself as such a great artist that although doing work for hire was afraid we might use our personal family photos without giving him credit.
In the end... he sent another team to do our photographs and wouldn't even give the ~20 "edited" photographs except as a flash EXE.
I'm a programmer and I know what copyright is but that photographer was deluded.
Has anybody had any luck getting a prospective employer who advertises "unlimited PTO" to do this in contract negotiation phase? Basically I don't want to just rely on the goodwill of said new employer to treat me respectfully for taking a good chunk of said PTO, and I want to define what is reasonable expectations up-front.
Another employer said you needed to talk to your manager and justify time off with regards to results, and the timing of your break, relative to releases, etc. In this scenario I hardly took any time off, but folks who clearly didn't care about their manager took SO MUCH. Learn from me, though: they never gave me the promotion I was chasing anyway.
That's interesting. In my state, you are owed accrued unused vacation time on your departure. One of the biggest reasons for going "unlimited PTO" is that there's no accrual, therefore they owe you nothing.
Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
IMO that's the only reason for employers to offer "unlimited PTO" schemes.
> Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
Hmm, at my most recent employer, I heard passdown from my manager that "the man above" (VP) had "guided" that 5 weeks was the ceiling for "unlimited" and that TPTB would look askance at anyone taking more. But this was all "off the record".
A lot of companies also have continual headaches about requests for unused time to roll over into the next fiscal year. So not only is the accrual a problem in regards to terminated employees but it's a debt on the books that has to be tracked and serviced.
My fun story about that is the large company I worked for a couple of decades ago - they still had a policy that allowed you to bank up to a year's worth of vacation time. After a few employees decided to retire a year early by taking a 52-week vacation and then retiring, the whole policy was trashed.
Imagine having a coworker retire and you can't fill the headcount for an entire year because they're still an active employee.
Works needs to be done and there’s no one to do it, the fact you can’t hire is a problem.
Why couldn't you?
That retiree on 'vacation' was drawing a paycheck and was still part of your yearly budget. Asking for a replacement meant increasing the budget by that extra person's salary, and that was a bureaucratic problem.
Oh, and here's the fun conclusion to the story I forgot to mention. When the policy was cancelled and rollover was taken away, every employee got paid a one-time lump sum for their accrued rollover time. Some people got 30-40 weeks of pay in a single check. And that launched many employees into a higher tax bracket for that year. Lots of fun all around.
This seems surreal to me, given that here (Germany) that is just above the legal minimum and every decent job gives 25-30 days. If someone offered "unlimited" here, I'd expect at least 40-50 days to be acceptable.
Google Canada capped us out at 5 weeks and that was after years of lobbying. But we could take copious unpaid time, and we were well paid, so.
I think that's generally true, but at my company (which is a very small startup of about a dozen people) we have unlimited PTO because we just really don't want to bother with tracking it.
I would much rather work somewhere with unlimited PTO, and not have to nickel-and-dime my vacation time. (Although, yes, this assumes that I'm lucky enough to work at a place that doesn't abuse the unlimited PTO promise.)
My experience later on is once you want Director or VP level roles at a noteworthy company, prospective employers are only keen to hire you at whatever level you've actually achieved. The jump from Senior Engineer to Tech Lead is orders of magnitude easier, totally doable by bailing to the next gig.
In fact, I've heard about "unlimited vacation" being a trap at companies, but have never seen that actually happen at any of the companies I've worked at which had unlimited PTO as a benefit (n=2, mind you).
On the other hand, I find that I myself do not take much vacation unless there is a "PTO economy" I am trying to game. If you tell me I have unlimited vacation days, I will take maybe 2 weeks a year off, mostly around the holidays. Knowing that I could take more time off seems to be enough to keep me from burning out.
On the other hand, if you tell me I have 4 weeks a year off, and I lose any unused days at the end of the year, I will take exactly 4 weeks every year off, like clockwork.
So, for me, I think that having a set number of days a year is better over all, as it paradoxically encourages me to take more vacation. /anecdotal.
Give me a feel for what I'm walking into.
I don't know if a company with unlimited PTO would put it in a contract, because that might put them on the hook for a payout for unused vacation when you leave. IANAL.
Presumably it's basically, legally, no contractual paid PTO but then they let you take PTO anyways? Because if they put N days in writing, well, then it's just the same as always. A liability on their books, etc.
But this is a totally incoherent statement. The company offers unlimited PTO. When you leave, they have to pay you an infinite amount of money? That obviously is not the law, no matter how much you say it's the law.
So it's perfectly reasonable to ask for clarification about how much time off is reasonable, what are the terms for approval, etc. A decent employer will be glad to explain their policies and even put them in writing if they have not already.
California labor law regarding vacation time is relatively generous compared to other states, that's probably another part of it (my state allows use it or lose it, for example).
I don't know where to go with that, it's just funny.
Seems to me it's a way of removing contractual obligations for PTO from the employment agreement and turning them into something that is fundamentally at the whim of the employer. While it's saying "you can take as much as you want", it also does not contractually enshrine anything, and there's nothing on the books to pay out at termination time, either.
Before I quit Google I had 5 weeks PTO + a whole pile of unpaid "flex" days if I wanted them. It could get hard to use all 5 weeks sometimes.
At other gigs I’ve seen the same things you fear, where “unlimited” means “as little as possible.”
I suspect a contractual guarantee isn't going to protect much from that. If you're taking 4 weeks but everyone else on your team is taking 2, there's going to be an impression that you're less "hard working" (warranted or not) than everyone else. However, if you get passed up for a promotion it's going to be hard to prove that was the reason behind it.
edit: the mandatory minimum that the sibling comment talks about fixes this.
The only thing you can count on is if you live in a state that requires payouts for unused vacation, you'll at least get more money if you don't take vacation.
perceived
> impact
Does your company have a way to measure if your accomplished +/- 10%? (+/- 4 weeks of work)
I refuse that outright and demand unlimited unpaid time off.
They were happy to change the details to fit what I wanted and we all went away happy. The thing that surprised me was when their intiial response was, "No-one has ever mentioned these before and we've been using these for years". I mean, the wording of the contracts could have gone very badly for me if things had gone south and we ended up in court.
Kind of makes me wonder if anyone actually bothers to read what they are signing.
I signed since I don't plan to open a volleyball business, but I raised it with the venue owner who basically said their lawyers suggested it and that only one other person objected to it over the last three years. He was willing to strike it out.
Anyway - people/businesses with clauses like this need feedback or they won't change it. I let the sand volleyball place know that I thought it was a scummy tactic, and that pushing something like that onto the rank and file patrons of a business is not appropriate for someone who chairs the community improvement district that the business is located in.
My takeaway was also that the vast majority of people just don't read what they sign.
Random things don’t become real just because they’re written down. Contracts have to represent “a meeting of the minds” and there has to be adequate consideration (expensive asks should be paid for). Slipping an uncompensated noncompete clause into a sports liability waiver has a low chance of satisfying either principle.
Nope, not typically, in my experience. I'm one of the folks who does, and it usually catches the other folks by surprise.
I signed a contract for a blog post I was writing and in the contract it said I couldn't mention that I was working with said company. But they were going to put my name on the blog post? I asked the person who sent me the contract, "should I not share this blog post?".
They changed the contract with no issues, but it showed me that they were just using a standard contract that no one ever bothered to read.
A lot of times, no. It happens to me even. I’m not a lawyer and I’m asked to sign contracts written by lawyers for other lawyers. I’ma reasonably smart guy and I can usually put two and two together in a contract, but often it’s written in a way that simply very difficult for me to understand and I can’t really tell what the contact is saying.
It’s a burden. If the stakes are small I might just sign it. Otherwise I might ask for clarification but most times you’re asked to sign something it’s assumed you’ll just take a minute to sign it so now you’ve thrown everything off.
I understand why contacts need precise language but I think it’s a bit unfair to expect lay people to sign contracts without a lawyer present much of the time.
My experience is that contracts are easy to read - much easier than code. For one thing, contracts are written to be completely unambiguous to a human (a judge), a goal which few coders attempt.
The challenge is knowing and applying what isn't in the contract: The outcome depends on the contract & the law & the court. The latter two apply many rules, many of which are complex or require judgment, and many also require anticipating how a judge might rule. You can write whatever you want in a contract - 'if Employee leaves Employer less than 10 years from the date this contract is signed, Employee must amputate Employee's left leg.' (And the last sentence brings demonstrates first point about the importance of non-ambiguity: If it said '... their left leg', whose leg is it?)
Generally, no. Everyone always expresses real surprise when I actually read a contract before signing. Usually, I just end up signing because there's not often room for negotiation, and I want to do the thing that requires the contract, and whatever, but I'd rather know. I've gotten some contracts changed, but often it's not worth the effort, IMHO.
I was in the military reserves, and one of the training weekends there was some thing they needed everyone to sign; I forget what it was, just something to make sure we were all aware of some random change in policy. I skimmed through the thing they asked us to sign, and one of the lines said, "I have received a pamphlet regarding $TOPIC." So I said, "Where are the pamphlets?" The admin person gave me a blank look and said, "What pamphlet?" I pointed to the text and said, "I'm signing to attest that I've received a pamphlet; I just wondered where it was."
I wasn't trying to rock the boat or make a big deal out of it, but generally if I sign something saying "I have received X" I want to have actually received X. Apparently I was the only person in the unit of 100+ people, including the admin staff, who actually read what they were signing.
OCR the contract text and reveal the meaning of the clauses and how common they are. Flagging for further review.
iOS already does OCR on all images now, just no comparative analysis.
Not exactly farfetched, could save everyone time, could be baked into the OS, nothing for indie devs to salivate over.
A reasonable response to the problem of “companies are trying to push dubious clauses in employment contracts” would be “make those dubious practices illegal and/or unenforceable”, or maybe “make obfuscated or hard-to-read contracts illegal and/or unenforceable”. Your response was instead, as in the linked comic strip, “let’s make an app to fix it!”.
I’ll sign a contract in California that contains a noncompete clause because I’m completely ignoring it, for example
Interesting we are just operating on different information to reach different conclusions
Mine is about empowering an individual as the other parts have either already happened or never will happen
This definitely sounds about right -- I'm pretty sure most places I worked and most other Y Combinator companies in my batch just took the standard forms from somewhere (e.g., the Orrick forms library) and used them, without thinking too much about the terms. [1]
If there's something in the terms that actually seem objectionable, it's likely the hiring manager, recruiter, and other people in your recruiting process have never thought about it either. By pointing it out, you're often educating them too on what the offer letter says, and providing valuable feedback for the recruiting process.
[1] https://www.orrick.com/en/Total-Access/Tool-Kit/Start-Up-For...
They handed me a contract with an IP clause that summed up to their owned any idea I came up with. This wasn't uncommon at the time, but it was more aggressive than I was used to. I made it clear to the HR person that I was actively contributing to open source tools at the time, such as snort, nessus, and also had ideas of my own that I was already working on.
The HR person made it clear that if I were to continue working on these ideas it would become property of the company -- Even if performed during my free time.
I don't remember the specifics any more, but after some discussion and escalations we came to the agreement that since my hobbies were so close to my work function that any new ideas I came up with were property of the company, so I was asked to provide a list of what I was working on and it would be amended to the contract. I provided a 4 page outline of the 4 projects I was working on and their what intellectual property they involved.
The the next day they rescinded the offer. At the time I had assumed it was because their ideas were not that novel and they wanted fresh ideas to take and profit off of. Will never know for sure, but they went out of business between 2001/2002.
Regardless how right I was, since then I was always a lot more aware of IP clauses in contracts and how they were phrased. I also try not to work for companies who sell security software.
I also think it's helpful to realize that for a lot of companies, they are pretty happy to change an employment contract, you can make the process a lot nicer for everyone if you given them a heads up early in the process that you intend to review the documents and might ask for changes. Most recruiters I've worked with have been happy to send over all of the standard documents well ahead of a final offer so that I have time to review them, and it gives them a chance to get changes made before you actually sit down to fill out the final versions of all of the paperwork (but still review the version you are actually signing).
I will say that while my experiences negotiating these things have generally been good, I've also specifically avoided larger companies that have a reputation for overreaching IP ownership clauses. If a startup has an overly broad ownership clause, it's quite likely that they are just using a form contract and didn't think too much about it. If large company with thousands of developers has a similar clause, I'm much more likely to assume it's intentional and simply not interview to save myself the trouble of trying to negotiate with a behemoth.
Non-competes are protectionism for larger businesses over small/medium businesses and try to own employees skills that they may have brought to the company or client themselves.
As a freelancer, contractor and self-employed business owner/worker, please make these illegal, tired of these.
The worst part about non-competes is they are blanket protectionism usually and up to 2+ years of non-compete, this sometimes happens on a job that is only 1-3 months. You have to laugh at those types of situations. Usually the client will push them aside or lower the time to the job plus some time, but both non-competes and arbitration agreements are horrible for workers in today's economy where people change jobs frequently and many are self-employed/freelancing/contracting. NDAs are plenty enough to protect companies from clients and work done specifically for the projects.
After SCOTUS upheld arbitration agreements [1] I am worried if non-competes become fully legal which they are not in extreme cases except in California [2]. The FTC is looking into non-competes now and they should be illegal [3].
We need to move the way of California and make non-competes null and illegal, it hasn't stopped innovation in CA and may be a big reason why so much innovation goes on in Cali.
The non-compete should not exist. At the core, removing competition from skilled workers in our economy is bad all around, unless you are one of the current big fish.
[1] https://www.nytimes.com/2018/05/21/business/supreme-court-up...
[2] https://www.nytimes.com/2017/05/13/business/noncompete-claus...
[3] https://www.ftc.gov/news-events/events/2020/01/non-competes-...
I went through this with a lawyer and she told me it is unlikely they would sue me, but they could make my life miserable. That was enough for many to be too scared to go to the competitors. - My experience is from Europe; but I will never ever sign a non compete anymore and so fo I recommend go anyone.
https://news.ycombinator.com/item?id=17849490
I don't know what the scope of it is though. I wonder if anyone has pushed back at arbitration clauses successfully. I got screwed by one once, I'm pretty sure.
In reality, the way employment law works is that the legal “contract” was a statutory one, implicit from the day I started. I started work and they paid me a salary, therefore I was legally an employee. The “contract” was really just the terms and conditions which the employer is required to offer the employee within a certain time period after their start date. In the UK this are called “particulars of employment”, I think.
I asked for changes to four of the clauses including IP assignment and me giving the school the right to be the final arbiter for any disputes of damage to pupils belongings. It gave them the right to withhold my pay in order to compensate parents who raise a grievance. So little Johnny could claim I stepped on his laptop and I wouldn’t be able to do anything about it if his parents got pissy and demanded I pay.
The school was sympathetic and said that of course no such extreme event would ever happen, but I was also told it would cost too much to hire a lawyer to change the document. I said I couldn’t sign it but that I agreed to everything else. They let me work there for several years anyway before I got made “redundant” when they hired a better teacher to take my place.
What a bunch of clowns. And that includes me — I should have walked really, but once you start working with kids it’s incredibly hard to let go of the adorable little monsters. One suspects that schools are well aware of this enormous emotional leverage they have.
I made it a few interviews into the loop while steadfastly refusing to sign the NDA, and I even told the recruiter that I objected to the scope of the contract. The recruiter indicated that they had absolutely no leeway on the NDA, and it was "take it or leave it." So after passing several interviews in the loop with flying colors, I called off the remainder of the interviews. They freaked out because I had been doing so well and wanted to know why on earth I wouldn't at least let them draw up an offer. "Your NDA is inequitable" was my responses, which really seemed to confuse them, because they were so used to tech workers dreaming of stock options in states with more worker-friendly legal environments like California just signing whatever they shoved at them. Their recruiting department still had the nerve to pester me a couple of times to sign the NDA after I terminated the interviews because I objected to the NDA.
*Edit: I previously called California a "right-to-work" state, which is something I've heard a lot of people say, but I guess it's not technically correct.
It is common for state law to make non-compete clauses wholly unenforceable. They put them in anyway, hoping you will be fooled.
New York investment banks are used to paying former employees to do nothing for a year after they leave, before they are allowed to, in effect, compete. Without paying, they would have no grounds to object to anything.
Consult a lawyer first: "Many" is far from "all". It is always better to have all this nailed down up front.
Some states are actively hostile to workers. Some are actively hostile to black workers. Only a local lawyer can tell you how things are.
Of course they can. That was the whole premise of the Listerine case.
A royalty fee agreement is pretty different to an NDA.
They’re asking $2.1M and they earned $140k last year.
An example: I've always looked very skeptically at NDAs. I pushed pretty hard for a sunset clause on one once. The other side pushed back. I ultimately decided to sign, as everything else about the arrangement was very acceptable. Once privy to the information on the other side, I understood their reluctance.
Also, there are some states with reasonable worker IP protections. Those change the foundations of some contracts for the better.
https://en.wikipedia.org/wiki/Best_alternative_to_a_negotiat...
Since then, before accepting an offer I always said, "I'd also like to see any documents that I will be expected to sign on the first day of work, or any employee handbook whose policies I will be expected to follow."
>When I pointed this out to them I got a very typical reply: “Oh, we don't actually mean that, we only want to own things you produced in the scope of your employment.” What they said they wanted was what I also wanted.
I still view this as a huge red flag. The companies I've come across that had fuck-you clauses like this inserted by overzealous lawyers usually had a toxic culture to match.
A company that will default to "we get first dibs on everything coming out of your brain" will probably not treat you with respect even if certain individuals who work there are reasonable human beings.
The worst company I ever worked for not coincidentally had the worst contract (e.g. they had 8-7 working hours followed by a verbal "dont worry nobody actually works that").
Contractual clauses are an underrated window into company culture. It's the one place where honesty prevails.
These days I dont push back on unreasonable clauses or give the opportunity for the hiring manager to say "whoops so sorry our lawyers tried to fuck you". When a company tries to tell me who it is I believe them - first time.
I'd rather see the contract say that work delivered to the company belongs to the company, no exception. This protects the companies future interests, they clearly own everything their employees have delivered. A conflict-of-interest clause, a NDA, and a clause stating I can't take company data to use elsewhere can cover all other concerns without limiting my ability to be a free individual in my free time.
I think the key elements are a) mention your intention to review IP contract language early, in writing, so it isn't a surprise later (because it WILL be a surprise otherwise) b) only talk to people who can actually make a change (no low-level people) c) be reasonable yourself (don't overreach) and be specific about your change requests (don't make them guess) d) don't get angry (can be difficult), it's a negotiation e) actually be willing to walk.
People like to write all kinds of weird things in contracts, but you can't legally sign away your rights (in Europe, USA may be different?). I quite happily break unlawful contracts, no company with a functional legal department is ever going to be stupid enough to take it to court.
You can easily sign away your rights. If you couldn't, it would be impossible to sell things (which was a feature of European feudalism - land was generally not alienable).
A right that you can't waive is called an inalienable right. A right that you can waive is just a right.
Rules like no pets, no additional occupants, etc are unenforceable where I live. But if I asked the landlord to change it, they may just pick someone else. Therefore, I sign and break the contract.
Here are some tips that have worked for me. I am not a lawyer but I've spent a decade plus reading all kinds of contracts. It's kind of a hobby.
1. Read the entire contract carefully.
2. Consult a lawyer if there are things you don't understand. My biggest single disaster was because of failing to do this on a partnership agreement. It almost tanked a company acquisition deal. I always go back to counsel whenever something new pops up. You can think of it as paying lawyers to teach you how to take care of yourself.
3. If you see something you don't like, you can ask a question like the following: "I see you put X in the contract. What's the problem you are trying to solve here?" It sets up a conversation about how to rewrite it in terms that are more acceptable.
4. Provide alternative language whenever you can. This is better than forcing the other side to go back to their lawyers who may be motivated to cover their butts / show they are putting in the time rather than finding a real solution.
There are things that counterparties see as vital so at some point you'll hit things where they simply won't budge. At that point you can make an informed decision whether you want the overall deal. Meanwhile you get the other stuff that's important to you.
Places I tend to be really careful: matters related to IP, liability, and indemnification. These are all areas that can get really painful if things go south. There are a number of tricks to do end runs around liability in contracts. Check with counsel if you have any doubt and push back hard.
Places where I'm more flexible: terms for payment, length of termination period, governing law, venue for resolution of disputes (e.g., arbitration vs. courts), etc.
Again I'm not a lawyer and your experience may be different.
They printed up a new contract with the offending clause deleted.
I didn't last long there, and I think part of the reason why is because they were pissy about the contract.
Should have seen the writing on the wall.
Most people don’t have a second job / blog / business / side hustle / whatever and don’t care if the company owns everything they make.
I’ve renegotiated the same clause as in the blog multiple times with no issues.
Also had to do the same for a book I wrote taking out of copyright fairy tales and gender swapping them with an algorithm I made. The publishers contract (quite understandably) said the manuscript couldn’t contain any work in the public domain, but the whole concept of the book was to gender swap a text exactly as is, to shine a light on the inequalities in the original. It was a bit of a battle to change it but I think more based on requiring more lawyer time than anyone trying to do anything untoward.
Always ask to change it but always be nice about it. They probably aren’t trying to screw you over!
(But also don’t let anyone screw your over just because they didn’t mean to!)
I feel that the principle of least privilege would be a good point for employment contracts to start, rather than the current approach of "try get control over everything employee might think of whilst employed, even if it's during their own time and unrelated to the business"
That is illegal in California, and California contracts I've seen have mentioned that.
I also push back on drug tests and insurance requirements and background checks, although for the right money I will relent.
I don't really know why most employment contracts are not from a standard source anyway: we will pay you this much, this often, for this many hours' work during that period. You don't take or destroy our equipment or represent us badly in public. When you leave you give us our equipment back, and don't solicit our employees for 6 months after. You get a bonus on these terms, and share options on these terms. Only things you make at work OR using our equipment belongs to us.
Every time there's an unfavorable edge case to (any) employer, then another clause gets added to the "standard contract".
So with reusable contracts (like employee contracts) you end up with very asymmetric goals, and a very asymmetric contract. Yes, push back is important, and it's valuable to the company to hear that push-back.
Speaking as an employer, I would not be prejudiced against an employee questioning or rejecting terms in the contract. Some changes might be deal-breakers, some might not. But clearly we can negotiate and assuming we don't find any mutual deal breakers we'll both be happy.
I would personally also see this as a positive, not negative, interaction with an employee, not something for them to fear.
But of course, being new, they don't know that, and I understand the asymmetry of power in this situation.
This is unenforceable in California.
From that fact the transaction is pretty much destined to not be particularly fruitful anyway, and (unless you're short on cash or otherwise in some kind of a corner), you're best cutting your losses and moving on.
I’ve had a reputation among most of the people with whom I’ve signed contracts for being the rare person who reads the whole thing. The author is right that it’s a good idea to push back on parts of the contract that don’t sit well, and that it’s a privilege to be able to do so.
When I’m in a strong negotiating position, I’ve found also that the author is also right that the other party is usually truthful and also that they’re usually open to making changes to remove conflicts and resolve ambiguities. If you’re in that position, you’re usually much better off pushing back than accepting the contract as is.
Even if you know your contract has unenforceable provisions, and you know they’re unenforceable, they’re a litigation landmine. Maybe they’re highly unlikely to become actual litigation, but if there’s even a possibility everyone benefits from eliminating it. If that becomes a point of contention, bonus points: you’ve found a red flag with this other party to your contract. Even if you move forward you have better understanding of where you can anticipate conflict.
But most of the time, unless your contract is incredibly unfair or the parties are incredibly unprepared to negotiate its terms, you’ll just get the edits you want because everyone already agrees in principle that it’s okay to move forward.
I said, this seems intense, I’m ready to hire you, just drop this clause… and she wouldn’t do it.
They're not responsible for X but i am.
I'm obligated to do Y but they're not.
I can be sued but they're not.
I always make them to trim the BS and equalize the wording.
I've lost over 7000 EUR of income from a German company over vague contract clauses which I was too lazy to sort out when signing it, because my boss and I had known each other for a long time when signing, and I fully trusted him. 3 years later, the company was sold, and the new boss started to randomly fire people on any given day he saw fit. One day I've got a call that I should stop working on my tasks immediately. I was supposed to be paid until the end of the month coming after the month in which the notice was given, but they've never paid - not even for those ~15 days I already worked in that month - and German courts could not care less, plus it was difficult/impossible for me to chase them, being based in another European country.
Always be careful about what exactly do you sign - the circumstances may change considerably, however unlikely it seems at the time.
This is an optimistic, and perhaps productive perspective, but often the legal advice suggests writing the template language in the employer’s favor, knowing it may be negotiable.
The advice is good… read agreements before signing, and negotiate reasonable points.
Make sure you exclude anything you have previously written or thought about writing.
Make sure you understand the employee handbook, which is often included by association.
It seems fair to me that anything I do 'off the clock' on hardware I own is mine, though of course you need to respect any confidentiality agreements you sign too.
https://sfconservancy.org/blog/2016/aug/04/everything-is-neg... https://sfconservancy.org/contractpatch/ https://sfconservancy.org/blog/?tag=ContractPatch
I always manage to get it altered, but it is such an annoying point of friction.
I'd love something like the YC safe financing documents but for employment contracts - a free resource with well vetted, well explained contract language so I can say "let's use this language from here" and everyone can get on with their lives.
Places this might not work are larger companies with armies of lawyers--you don't have leverage in these places, since if not you, they can find someone else to sign the contract.
For example, if you are already employed, your employer may want you to sign another document. I've successfully pocketed such documents and not returned them. I was never called on it.
If they don't force the issue, there's no point in making it an issue.
Is there any contract that doesn't do this with the "binding arbitration" bullshit?