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What this author misses is that California also has a law[1] that makes unenforceable contracts that claim ownership of anything employees do on their own time
by njarboe 9y ago
What this author misses is that California also has a law[1] that makes unenforceable contracts that claim ownership of anything employees do on their own time with their own equipment. Passed in 1979 (amended 1991). I think other places hoping to create "Silicon $X" need to put anti-non-compete and this law in place to even have a possibility to create a similar culture to the Valley.
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
[1]https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB§ionNum=2870 https://leginfo.legislature.ca.gov/faces/codes_displaySectio....
- ryandrake 9y ago> Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated rese You can fit the entire planet through that loophole. Most employers can easily show that your side project “relates” to something they do or might one day do.
- yebyen 9y agoI would be careful trying too hard to fit anything at all through that loophole though, as I'm pretty sure in California, companies that push employees to sign non-compete agreements that are deemed unenforceable (which is objectively most non-competes in California), may be subject to statutory damages and may wind up getting summarily owned in the countersuit. I have no source for this and I am not a lawyer (but nobody knows you're a dog on the internet...) – if anyone knows more about this than I do, I'll happily read and be glad to learn something, but this is a subject I've read a bit about. OK, actually, it wasn't that hard to find a citation: http://levinebakerlaw.com/publications/post-employment-non-competes-unenforceable-in-california/ http://levinebakerlaw.com/publications/post-employment-non-c... see the phrase "independent wrong" You still have strong protections as an employer against "unfair competition" but you are better off not trying to pass any non-compete agreement to your employees, as you may be on the hook for damages if it's determined that your NCA is unenforceable, so you misled the employee(s) who have signed it. California law is (and has always been) very favorable to employees, compared to other states.
- njarboe 9y agoThe company you work for might try, but the fact that the law states that you are allowed to do your own thing sure helps support a culture of side projects and startups.