6 ms·

I've asked this before and never got a straight answer, but I'll ask again: what exact clauses do I need to modify in the employment contract, and what exactly

by _odey 5y ago

I've asked this before and never got a straight answer, but I'll ask again: what exact clauses do I need to modify in the employment contract, and what exactly must they say, in order to avoid this sort of situation? (relevant to UK employment that is). If you've solved this for yourself, please tell us all how and what it's written in yours so we can do the same. Here is a link to what my previous employment contract stated about copyright: https://news.ycombinator.com/item?id=24220800 https://news.ycombinator.com/item?id=24220800 (right now I'm just a shareholder in a company and not employed). Basically it says employer owns all, and I'd like that to say something else... but what?

bsenftner 5y ago
Believe it or not, this actually works: bring your attorney with you to the interview, and accept no interview less than product lead. Basically, it's an arms race currently using guns, and the majority of the dumb ass developers show up with knives.
- larsrc 5y ago
  If you're in a union, bring a union lawyer. If you're not, well, this is why you might want to be.
andi999 5y ago
Talk to a work contract specialized lawyer. Even apart from this issue, there might be other issues in the contract, so why not alway talk to one before signing.
- _odey 5y ago
  I would like to see something that already exists and was used successfully first, so I don't go and talk to one empty handed... It's one thing to say: "I'd like to keep ownership of code I write on my free time" and another to add "like all these others do so already" to that statement. Maybe I could try emailing the FSF and asking for hints, as I'm registered with them to be able to contribute to emacs, and actually need to inform them about employment contracts changes and things like this in general. But still, there must exist somebody, somewhere, that has something reasonable written in their employment contract we could use as reference.
anaisbetts 5y ago
Usually the clause where they claim ownership needs to have the phrase "Related to the business", or "During work hours with company equipment". If it tries to claim all IP during the course of the employment, redline it and hand it back
- _odey 5y ago
  Search for the words "or otherwise" in that block of text. I've had multiple discussions with the legal department at that employer and they refused to remove those words from the text. So it's not enough to just have those phrases in there (as they already are)... 13.4 (c) hereby assign to us by way of future assignment with full title guarantee (insofar as title to them does not automatically vest in $COMPANY as a consequence of your Employment subject to clauses 39-43 of the Patents Act 1977) all copyright arising in any original material (including source code and object code for software) and all other Intellectual Property Rights produced by you in the course of your Employment, whether during our normal hours of business or otherwise, or at the premises or using our facilities or otherwise, for the whole term of such copyright including any extensions or renewals thereof and including the right to sue for damages and other remedies for any infringements of the copyrights; and
  - anaisbetts 5y ago
    Well of course, I didn't give instructions on how to write a Regular Expression to parse legal contracts, I assumed that OP would still apply the semantic rules of English to his reading
- denton-scratch 5y ago
  Salaried staff in the UK may be considered to be employed 24/7, even if normal contractual hours are 9-5; i.e. you're not supposed to take a second job. Of course, a hobby isn't a second job, but that argument might not wash at a tribunal. It's best if you get your employer to recognise that your open-source work benefits them, so they explicitly agree that your FOSS work is part of "the course of your employment", even if you are forbidden to do it during office hours. This definitely needs to be clear in your contract; if it's not clear, the confusion is likely to be resolved to the employer's benefit.
ealexhudson 5y ago
Copyright is automatically the employer's in the UK: the term is "in the course of employment", and no contractual language is required. The employer is effectively the author. What that term means is a matter of case law, and is different if you are contracted / self-employed. Typically it is interpreted in a pro-employer manner, and if you are employed to write code then then assume that all the code you write is your employer's.
- _odey 5y ago
  So does that mean there is literally nothing I can do about it? Except becoming a contractor?
  - akvadrako 5y ago
    That isn't what he said – just it's the employer's by default. So get a contract that makes your outside work explicitly yours.
    - ealexhudson 5y ago
      Exactly. Any form of "agree and accept that /X/ does not relate to the employment" sort of thing. But you have to be very specific about what is carved out.
    - _odey 5y ago
      OK, that's good to hear. But now I need suggestions and feedback... In a previous thread https://news.ycombinator.com/item?id=24220858 https://news.ycombinator.com/item?id=24220858 I've suggested the following: 13.8. $COMPANY and any Group Company will not attempt to claim copyright, intellectual property rights, nor patent right to any creation done outside of working hours (also known as employees free time), outside of the premises, and not using any $COMPANY facilities, as long as any such creation does not relate to the employees current responsibilities, and as long as it does not directly compete with $COMPANY business model and business activities. 13.9. As long as you do not go against clause 13.8, you are not obligated to disclose to us your creations. But this is just my wishful thinking of mine that nobody replied to... and not something that I've actually managed to get written and signed. What I'd like to see is a concrete example of such a clause in a real, existing, signed by both parties, actual contract.
jiveturkey 5y ago
Search for 'california assignment of inventions' as well as 'california assignment of inventions template'. The first hit for the latter is currently https://launchtothrive.com/wp-content/uploads/2017/08/Thrive-Form-Employee-Invention-Assignment-Agreement-California.docx https://launchtothrive.com/wp-content/uploads/2017/08/Thrive... which has a great exhibit B you can attach. Reword it to reference the CA statute but to be clear that it shall apply to you regardless of residence in CA.
- _odey 5y ago
  You mean this? California Labor Code Section 2870 provides as follows: 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. 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 California Labor Code Section 2870(a), the provision is against the public policy of this state and is unenforceable. Will it be relevant to UK employment too?
  - seanwilson 5y ago
    > except for those inventions that either: (1) relate at the time ... to the employer’s business So if the domain of your side project has nothing to do with what you're actively involved in at work, but your employer is involved in or has a business interest in that domain, the employer can claim ownership? Which for many large companies (especially e.g. Google) is a lot of domains?
    - jiveturkey 5y ago
      yes and yes
FpUser 5y ago
When I got my first programming job in Canada I've already had active product. I have informed them about it and I've also asked them to agree that whatever I am working on in my private time is my property as long as it is not in direct competition and / or not based on employer's code. They did not mind at all.
- _odey 5y ago
  Was that agreement in writing, and signed? Could you share such a document, redacted if needed, with us?
  - FpUser 5y ago
    It was in writing and signed. No sharing as it was 90s and I've no idea where the copy is if still exists. Never needed that again as I went on my own in 2000 and have never looked back. But it was not lawyer speak. I just concocted a couple of paragraphs myself that had replaced their standard "ownership of whatever I do" and that was it. It was a small company and they were easy.
trebligdivad 5y ago
You need to get something that explicitly says what you want; if you want the freedom to work on one particular open source project then get them to give you that clause; but also thinkw hether you want it more general; It's very difficult because my understanding is you can't even do drive-by fixes in random projects without an OK.
- _odey 5y ago
  I've gotten OKs before, but they were verbal and not written, basically my manager at the time stating they will "close an eye" and let me do it. The problem was the other eye was wide open and they did enforce their "all your code are belong to us" stance against me once (you could say I was in a similar position to OP just on a waaay lower magnitude, reason why I'm so invested in this right now). For another project I've asked them to write me an email from their legal department stating I own copyright for that code and they won't try to claim it. They've done that after a few months passed... It's a small victory I guess. But I want a proper solution we could all agree on (both as employees and as employers as both are relevant to me right now). Currently I'm gathering all the feedback in this thread and I would love to receive copy pastes from existing employment contracts to formulate a strategy.
Arubis 5y ago
You should absolutely continue this pursuit, but keep in mind that the biggest things you can do to avoid a legal dispute are to clearly communicate expectations and not work with assholes. A well-written contract is like a solid deadbolt on your front door: it’ll make reasonable people think twice, but a determined attacker will just smash a window and go through it (or, to explicate the metaphor, sue you anyway knowing the legal process itself is sufficiently painful to wear you down even if they don’t have a case).
- _odey 5y ago
  I will, already received a good example here: https://news.ycombinator.com/item?id=29449353 https://news.ycombinator.com/item?id=29449353 (a sibling thread in this post).
mattlondon 5y ago
Just a note - in all places I've worked (BigCo's) they take a zero-tolerance approach to modifying the contract. It is their way or the highway. I guess they can afford to just say no and pass on you, rather than have loads of employees with their own unique snowflake contracts. Perhaps smaller companies are less strict, but IME big ones take zero shit in this regard. Good luck.
- _odey 5y ago
  Personally I don't have any hopes of such a feat at a big company but I can't stand to think it's not possible to have this anywhere. From past interviews I've seen smaller companies are willing to compromises and are reasonable in their demands, but a real example of something that already exists and is in effect goes a long way to show you're not being overly pretentious (like I've been "accused" by previous managers before). Reason why I'm searching for what people actually have in their contracts right now.
hogFeast 5y ago
This kind of thing is totally unenforceable in the UK. The corollary of clauses about side projects is that you are unable to work anywhere else whilst you are employed at the company, again totally unenforceable in the UK (the case law against restraint of trade goes back to the 17th century in the UK). The only exception to this is if the work you are doing outside the contract conflicts/overlaps with the work you are doing within the contract. In that case, if the employer inserted a restraint of trade clause into the contract, that would be enforceable (that is a standard non-compete, which is perfectly legal and sensible). It is all total nonsense though. UK employers, and lawyers, are a bit mad about this kind of thing. They will insist on things like probationary periods or working "at will" for a period of time...and then they will demand that you yield 24 hours of your time whether awake or asleep to them...whilst they pay you for 7 hours. It is what happens when underemployment is high.

by _odey 5y ago

bsenftner 5y ago

Believe it or not, this actually works: bring your attorney with you to the interview, and accept no interview less than product lead. Basically, it's an arms race currently using guns, and the majority of the dumb ass developers show up with knives.

larsrc 5y ago
If you're in a union, bring a union lawyer. If you're not, well, this is why you might want to be.

andi999 5y ago

Talk to a work contract specialized lawyer. Even apart from this issue, there might be other issues in the contract, so why not alway talk to one before signing.

_odey 5y ago
I would like to see something that already exists and was used successfully first, so I don't go and talk to one empty handed... It's one thing to say: "I'd like to keep ownership of code I write on my free time" and another to add "like all these others do so already" to that statement. Maybe I could try emailing the FSF and asking for hints, as I'm registered with them to be able to contribute to emacs, and actually need to inform them about employment contracts changes and things like this in general. But still, there must exist somebody, somewhere, that has something reasonable written in their employment contract we could use as reference.

anaisbetts 5y ago

Usually the clause where they claim ownership needs to have the phrase "Related to the business", or "During work hours with company equipment". If it tries to claim all IP during the course of the employment, redline it and hand it back

_odey 5y ago
Search for the words "or otherwise" in that block of text. I've had multiple discussions with the legal department at that employer and they refused to remove those words from the text. So it's not enough to just have those phrases in there (as they already are)... 13.4 (c) hereby assign to us by way of future assignment with full title guarantee (insofar as title to them does not automatically vest in $COMPANY as a consequence of your Employment subject to clauses 39-43 of the Patents Act 1977) all copyright arising in any original material (including source code and object code for software) and all other Intellectual Property Rights produced by you in the course of your Employment, whether during our normal hours of business or otherwise, or at the premises or using our facilities or otherwise, for the whole term of such copyright including any extensions or renewals thereof and including the right to sue for damages and other remedies for any infringements of the copyrights; and
- anaisbetts 5y ago
  Well of course, I didn't give instructions on how to write a Regular Expression to parse legal contracts, I assumed that OP would still apply the semantic rules of English to his reading
denton-scratch 5y ago
Salaried staff in the UK may be considered to be employed 24/7, even if normal contractual hours are 9-5; i.e. you're not supposed to take a second job. Of course, a hobby isn't a second job, but that argument might not wash at a tribunal. It's best if you get your employer to recognise that your open-source work benefits them, so they explicitly agree that your FOSS work is part of "the course of your employment", even if you are forbidden to do it during office hours. This definitely needs to be clear in your contract; if it's not clear, the confusion is likely to be resolved to the employer's benefit.

ealexhudson 5y ago

Copyright is automatically the employer's in the UK: the term is "in the course of employment", and no contractual language is required. The employer is effectively the author. What that term means is a matter of case law, and is different if you are contracted / self-employed. Typically it is interpreted in a pro-employer manner, and if you are employed to write code then then assume that all the code you write is your employer's.

_odey 5y ago
So does that mean there is literally nothing I can do about it? Except becoming a contractor?
- akvadrako 5y ago
  That isn't what he said – just it's the employer's by default. So get a contract that makes your outside work explicitly yours.
  - ealexhudson 5y ago
    Exactly. Any form of "agree and accept that /X/ does not relate to the employment" sort of thing. But you have to be very specific about what is carved out.
  - _odey 5y ago
    OK, that's good to hear. But now I need suggestions and feedback... In a previous thread https://news.ycombinator.com/item?id=24220858 https://news.ycombinator.com/item?id=24220858 I've suggested the following: 13.8. $COMPANY and any Group Company will not attempt to claim copyright, intellectual property rights, nor patent right to any creation done outside of working hours (also known as employees free time), outside of the premises, and not using any $COMPANY facilities, as long as any such creation does not relate to the employees current responsibilities, and as long as it does not directly compete with $COMPANY business model and business activities. 13.9. As long as you do not go against clause 13.8, you are not obligated to disclose to us your creations. But this is just my wishful thinking of mine that nobody replied to... and not something that I've actually managed to get written and signed. What I'd like to see is a concrete example of such a clause in a real, existing, signed by both parties, actual contract.

jiveturkey 5y ago

Search for 'california assignment of inventions' as well as 'california assignment of inventions template'. The first hit for the latter is currently https://launchtothrive.com/wp-content/uploads/2017/08/Thrive-Form-Employee-Invention-Assignment-Agreement-California.docx https://launchtothrive.com/wp-content/uploads/2017/08/Thrive... which has a great exhibit B you can attach. Reword it to reference the CA statute but to be clear that it shall apply to you regardless of residence in CA.

_odey 5y ago
You mean this? California Labor Code Section 2870 provides as follows: 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. 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 California Labor Code Section 2870(a), the provision is against the public policy of this state and is unenforceable. Will it be relevant to UK employment too?
- seanwilson 5y ago
  > except for those inventions that either: (1) relate at the time ... to the employer’s business So if the domain of your side project has nothing to do with what you're actively involved in at work, but your employer is involved in or has a business interest in that domain, the employer can claim ownership? Which for many large companies (especially e.g. Google) is a lot of domains?
  - jiveturkey 5y ago
    yes and yes

FpUser 5y ago

When I got my first programming job in Canada I've already had active product. I have informed them about it and I've also asked them to agree that whatever I am working on in my private time is my property as long as it is not in direct competition and / or not based on employer's code. They did not mind at all.

_odey 5y ago
Was that agreement in writing, and signed? Could you share such a document, redacted if needed, with us?
- FpUser 5y ago
  It was in writing and signed. No sharing as it was 90s and I've no idea where the copy is if still exists. Never needed that again as I went on my own in 2000 and have never looked back. But it was not lawyer speak. I just concocted a couple of paragraphs myself that had replaced their standard "ownership of whatever I do" and that was it. It was a small company and they were easy.

trebligdivad 5y ago

You need to get something that explicitly says what you want; if you want the freedom to work on one particular open source project then get them to give you that clause; but also thinkw hether you want it more general; It's very difficult because my understanding is you can't even do drive-by fixes in random projects without an OK.

_odey 5y ago
I've gotten OKs before, but they were verbal and not written, basically my manager at the time stating they will "close an eye" and let me do it. The problem was the other eye was wide open and they did enforce their "all your code are belong to us" stance against me once (you could say I was in a similar position to OP just on a waaay lower magnitude, reason why I'm so invested in this right now). For another project I've asked them to write me an email from their legal department stating I own copyright for that code and they won't try to claim it. They've done that after a few months passed... It's a small victory I guess. But I want a proper solution we could all agree on (both as employees and as employers as both are relevant to me right now). Currently I'm gathering all the feedback in this thread and I would love to receive copy pastes from existing employment contracts to formulate a strategy.

Arubis 5y ago

You should absolutely continue this pursuit, but keep in mind that the biggest things you can do to avoid a legal dispute are to clearly communicate expectations and not work with assholes. A well-written contract is like a solid deadbolt on your front door: it’ll make reasonable people think twice, but a determined attacker will just smash a window and go through it (or, to explicate the metaphor, sue you anyway knowing the legal process itself is sufficiently painful to wear you down even if they don’t have a case).

_odey 5y ago
I will, already received a good example here: https://news.ycombinator.com/item?id=29449353 https://news.ycombinator.com/item?id=29449353 (a sibling thread in this post).

mattlondon 5y ago

Just a note - in all places I've worked (BigCo's) they take a zero-tolerance approach to modifying the contract. It is their way or the highway. I guess they can afford to just say no and pass on you, rather than have loads of employees with their own unique snowflake contracts. Perhaps smaller companies are less strict, but IME big ones take zero shit in this regard. Good luck.

_odey 5y ago
Personally I don't have any hopes of such a feat at a big company but I can't stand to think it's not possible to have this anywhere. From past interviews I've seen smaller companies are willing to compromises and are reasonable in their demands, but a real example of something that already exists and is in effect goes a long way to show you're not being overly pretentious (like I've been "accused" by previous managers before). Reason why I'm searching for what people actually have in their contracts right now.

hogFeast 5y ago

This kind of thing is totally unenforceable in the UK. The corollary of clauses about side projects is that you are unable to work anywhere else whilst you are employed at the company, again totally unenforceable in the UK (the case law against restraint of trade goes back to the 17th century in the UK). The only exception to this is if the work you are doing outside the contract conflicts/overlaps with the work you are doing within the contract. In that case, if the employer inserted a restraint of trade clause into the contract, that would be enforceable (that is a standard non-compete, which is perfectly legal and sensible). It is all total nonsense though. UK employers, and lawyers, are a bit mad about this kind of thing. They will insist on things like probationary periods or working "at will" for a period of time...and then they will demand that you yield 24 hours of your time whether awake or asleep to them...whilst they pay you for 7 hours. It is what happens when underemployment is high.