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Comment by hapless | Hacker News Reader

This is a sad story, but it could have been seen coming from a mile away:

- He worked on a personal project during company time. Edit: Oops. I misread this one as the inverse of what the author was saying. He only worked on it while employed. Still very ugly given the field of his work.

- His personal project is directly related to his work.

- His personal project conceivably competes with his employer's products.

- The company does not have staff in NY or CA, so the author lacks even the minimal limitations on non-competes imposed by state law (http://newappendto.wpengine.com/wp-content/uploads/2013/12/1...)

All of these things are typically barred by completely reasonable non-competes. As the author, I would absolutely expect to receive a C&D. As his former employer, I would feel (personally) hurt, even betrayed, by this behavior.

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The author makes no reference to a non-compete agreement. His former company claims that he stole their code and put it into his public repo, not that he is violating his non-compete.

If the accusation is false, it's easy to prove. But the problem is that a company can bankrupt an individual with just the legal fees involved in the discovery process and depositions alone, even if it doesn't go to trial. So most folks are forced to yield, as the author is doing.

> But the problem is that a company can bankrupt an individual with just the legal fees involved in the discovery process and depositions alone, even if it doesn't go to trial.

This is the damning thing. It looks like the company is, if not right, at least able to make a reasonable enough claim of rightness to warrant further discussion. However, what if the company was dead wrong? What is to stop an unethical corporate entity from punitively suing employees into cooperative behavior, knowing they cannot pay? Our lawsuit culture is quietly underlying this entire discussion: what if the company couldn't sue this man into legal-fee-poverty in the first place?

If he's not governed by a non-compete, yes, this is outrageous behavior on the part of his former employer. I had not even considered that possibility.

Either you don't quite understand the purpose of a non-compete or there's an entire class of them I'm not aware of (which is entirely possible), but in my experience, their purpose is to explicitly bar employees from poaching customers from the business.

Working on something in your personal time that's similar to what you're working on for your employer -- unless your employment contract is entirely unreasonable -- isn't and shouldn't be a violation unless you are using company resources (including but not limited to trade secrets learned in the context of your employment and not legally available through other sources).

This is a matter of non-compete agreements, signed by private parties. Personally, I think it's totally reasonable to ask employees not to work on competing products in their off-time. As an employee, I have signed such agreements myself. The author appears to have signed such an agreement.

We can disagree about this. You, personally, are free not to sign these agreements with your employer, because you feel the request is unreasonable.

(Trade secrets are different. That's typically governed by state law, no special agreement required: http://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act)

Non-compete is a somewhat generalized term being used here, but it can mean what you referenced ("don't poach customers") as well as "don't steal our product ideas". These are sometimes called NDA or PIIA (1) which might be better representations of what we are talking about here. In this case, the company is claiming that he stole their code (an 'invention' or 'property' of the company) for the benefit of some other party.

NDA or PIIA agreements are common in software development.

1 - http://en.wikipedia.org/wiki/Non-disclosure_agreement

Non-competes, as applied to tech workers in Massachusetts, essentially say from start, to two years after you quit your job, you will NOT work on anything similar, for anybody. (Depending on the contract you signed.)

(Current Governor of Mass is looking to change this.)

It IS a violation in many places and it should be IMO. See my reply above.

I'll try to dig up some relevant links to laws

Here's a relevant link.

"Employees Owe a Duty of Loyalty to Their Employers

...

Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty.

etc..

http://shawvalenza.com/publications.php?id=68

The OP explicitly said that he worked on it during personal non work time, and further more has evidence (git logs) to prove it. Whether his former employer has any evidence (either way) apart from the existence of the project on github obviously hasn't been stated.

Sorry, but git logs prove nothing. Git allows rebase and modification of commits. Even a full log of when pushes to github happened prove nothing - I can work during the day and just commit later.

So neither party can prove anything either way. This is precisely why we should never presume guilt.

The crowd here seems to presume guilt on the side of the employer.

It's a little unclear what you mean by "modify", so just to be clear here: you can't alter an existing commit.

You can certainly fake any timestamp you want to start with, or you can create a new set of commits with a different timestamp (which is what rebase does), but you can't change an existing commit - the hash would be wrong.

>but you can't change an existing commit - the hash would be wrong.

True - however as long as nobody ever saw that commit, nobody will know. So the only way a git log could ever constitute a proof would be that you immediately push to a tamper-proof audit system right after your commit.

Isn't the onus of proof on the company in this case?

How can the company prove that he worked on the open source project on their time?

Git logs are pretty flimsy sort of evidence though. You can work all day and commit at midnight.

Or just "git commit --date='2014-04-14T20:00'"

> - His personal project is directly related to his work.

He worked on the same thing in his work is very different

> - His personal project conceivably competes with his employer's products.

As far as I can tell, his former company is not in the CI business and do training and consulting, I'm guessing they wanted an internal CI for their client projects and stuff, there's no competition (not to mention there are already a billion CI out there)

He was paid to work on a CI tool, by a firm that sells development services. Even if we assume that tool would never, ever be sold to customers, releasing a product that erodes their competitive advantage is still foul play. It's dirty pool.

We don't know exactly what contract he signed with his employers, but this would not be permitted by any reasonable contract.

Working on a similar product as your last but rebuilding from scratch under a different employer (in this case himself) is by no means uncommon. Employees are often poached from companies specifically because of their experience in a field. There are contracts that require you not compete in a field after you quit (probably illegal n some states), but my impression is that those are less common. You can't take the code, or possibly event significant portions of how a system works, but your experience in the field is yours and yours alone.

The sticky part of this is where he started working on this (in his free time) while still employed for the original company. That, along with what we don't know about his employment contract, makes this hard to reason about.

NY and CA have laws that limit the scope and length of valid non-compete agreements.

In many other states, wide-ranging, long-term non-competes are practically universal. Personally, I've been asked to sign contracts that would effectively ban me from working in tech, period, for two years after departure.

Your own source for the fourth point, the map of offices, actually does show an office in upstate New York. Look again at http://appendto.com/wp-content/uploads/2013/12/100-Remote.pn...

>>He worked on a personal project during company time.

Doesn't he claim this is not true?

"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."

To be fair, you can work on something and wait until the evening to commit it.

You can also modify the commit timestamps.

... which means that there is no way to prove that you worked on something in your personal time, I guess?

Time isn't the only corporate asset he could have utilized to create his competing code. He might have utilized corporate-funded computers, LAN hardware, Internet access/bandwidth, etc. When I worked for a major Internet corporation I signed a contract specifically stating that anything I created using any corporate resources belonged to the company. Thus, when I worked on open source stuff, I did it from home using my own computer on my own time. Did the author sign such a contract, or violate such a contract by using company assets other than business hours? We just don't know.

Maybe he was breathing some residual company oxygen while he was in his home working on this software. It would follow that he used company resources and thus the software he created must belong entirely to his former employer.

Non sequitur means "it does not follow."

He did not work on it during company time.

"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."

Remind me never to work for you.

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