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I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. This makes me pro-regula

I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. This makes me pro-regulation and anti-market, but unfortunately I see exactly zero ways in which market can make contracts better. What are you expected to do in this situation - quit?

jiggy2011 14y ago
I'm not sure a one-size-fits all regulated solution is the answer. For example , what about a startup that wants to make signing of an NDA a requirement for employment? Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? What about employments that might deal with highly sensitive/classified information and thus require certain background checks to be performed before & during employment?
- deleted 14y ago
  [deleted]
- pretoriusB 14y ago
  >Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? Well, make that punishable by law, and no need for an NDA.
  - jiggy2011 14y ago
    How? Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? The majority of jobs don't really require any real secrecy thus one size fits all fails.
    - pretoriusB 14y ago
      >Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? Yes. Pass a law forbidding anybody from talking about what they did at work, including to their family or friends, if they are warned by the company that their work is confidential. Then let a jury decide if they violated that. If you work at a McDonalds, they need not tell you to keep confidential about anything. If you work at Apple, they can tell you: "no telling to anyone outside of what we do here". No silly clauses about "all IP you create" and stuff.
      - jiggy2011 14y ago
        So presumably your employer decides which parts of your work are and are not confidential. They then provide this information to you in writing and the implication is that by working for them you agree to abide by these rules. In other words basically the definition of a contract. The only difference I can see in this case is that your approach would actually make it a criminal offence (presumably involving a possible prison sentence) to violate your employers terms.
        pretoriusB 14y ago
        >The only difference I can see in this case Well, there's a big difference: they don't get to dictate anything about your personal projects, stuff you make at home, your sex tape and such. Only about stuff done at the workplace and pertaining to the work. Which is what the whole article was about, wasn't it?
        jiggy2011 14y ago
        I was replying to the original claim further up the thread that it would be preferable to abolish employment contracts and use only a standard set of legislation to resolve everything. This is different from simply arguing that certain clauses should not be enforceable.
wyuenho 14y ago
Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.
- mistercow 14y ago
  What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.
  - pretoriusB 14y ago
    Well, "pro free market" is usually (and silently) taken to mean "whatever benefit me as an employeer and screw the workers". As in: "if I want to have people working 20 hours per day, with no overtime for less than minimum wage, I should be FREE to do so, and people are FREE not to work for me". That's the kind of "FREE" the free market stands for usually. Of course, when all employers follow the same idea, or when people are desperate to find any work to survive (e.g because of a lack of jobs in their city), the latter point about "choice" becomes moot.
    - lostlogin 14y ago
      A fellow cynic! I see FREE MARKET and straight away re-read the paragraph to see who is getting screwed. I'm rarely disappointed.
      - ansgri 14y ago
        As kylebrown noted the distinction between 'free from' and 'free to', your interpretation suggests that the free market is the freedom to screw everyone you could manage to. I like this description, but the question is: is it net negative for people / production / indvidual? -- a fellow cynic.
    - kylebrown 14y ago
      This train of thought leads to the philosophy of freedom: positive freedom (free to) and negative freedom (free from). I think the best way to think about freedom is not as a binary relationship (X is free from/to Y), but as a ternary relationship (X is free from Y to Z).
cracell 14y ago
Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it.
- pretoriusB 14y ago
  >Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it. The problem is that the effectiveness of this relies on the bargaining power of the employees, which, in a "buyer's market" is not that much. Better to get the law to change to forbid such abuses for everyone.
  - bconway 14y ago
    If that was the case, sure. But in what world is this a buyer's market? At the last tech meetup I went to: Employers looking for developers: 11 Developers looking for work: 2 Austin, TX, for reference.
- ChuckMcM 14y ago
  In this case Sony is trying to change the agreement post employment. I wish the OP had said what HR said about ownwership of the sex tape, I really would have liked to use that example with the Google lawyers to see where they came down on it. I don't doubt that future contracts will say "We reserve the right to update this in the future as conditions change in order to remain compliant with applicable regulations and laws and in order to protect the interests of the company." Once you sign that, even with a permissive clause, they come back later than blam! Change it and you've pre-agreed to their changes which can now be much more restrictive.
- benwerd 14y ago
  In smaller companies you can sometimes rewrite the contract. I've done this, specifically to remove this clause.
sskates 14y ago
Yes, you can quit and work somewhere else. Also you can read about what Sony does on Hacker News and decide not to apply there for a job in the first place. I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively voids such clauses in employment contracts: http://www.quora.com/Legal-Issues/Which-California-laws-protect-moonlighting http://www.quora.com/Legal-Issues/Which-California-laws-prot...
- pretoriusB 14y ago
  >Yes, you can quit and work somewhere else. As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead? If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I think not, people would revolt and try to change the laws so that the company cannot do that. Why should BS NDAs be any different? People forget that: a) we're not necessarily talking about the top 1% of employees companies fight over, but also for the rest 99% of the people, that don't have an upper hand in negotiations and don't always have the luxury of moving around, staying out of a job long enough to find a better one, etc. b) we're not necessarily talking about a "seller's market" such as programming c) even if we did (b), we're not necessarily talking about now and the Valley, but also about times and places where unemployment is rampant.
  - Symmetry 14y ago
    Not every company in your field is going to have contracts like that, I can pretty much guarantee that if you are willing to work for a smaller company you can negotiate something. And I did quit my job because we were bought by a larger company with a contract I didn't like just this summer. It's quite possible I'd be making more money if I hadn't restricted myself in this way, but, well, integrity is worth something. Also, what do you mean that being a programmer isn't a seller's market. Unemployment in our industry is just 2.5 percent!
andrewflnr 14y ago
If we're going to have regulation, I think it would be more productive for it to make it easier to quit your job. That should actually improve the free-market dynamics.
- HeyLaughingBoy 14y ago
  How could it possibly be easier to quit your job? If I want to quit my job all I have to is not show up to work and eventually, after a few attempts at communication, they will send me a form letter and my final paycheck and remove me from the list of active employees. Of course, being a more polite sort, I'd probably at least email my manager that I wouldn't be coming back. But seriously, how could it be easier?
  - andrewflnr 14y ago
    Include "less dangerous" in "easier". Simply not showing up is not a good option for a responsible person trying to get ahead. Making sure the employment market is healthy and decoupling health care from employment might be helpful.
rayiner 14y ago
It's only "anti-market" if you fall into the common fallacy of conflating ideas of individual and economic freedom with the functioning of the markets. It's not at all the case that increasing say contractual freedom is always coincident with the improved functioning of the markets. The classic example is anti-trust law. Laws banning producers from forming cartels to fix prices is a restriction on contractual freedom, but they're a restriction that produces better, more competitive markets. There are a lot of considerations on the elasticity of demand for labor, information asymmetries between employer and employee, relative bargaining leverage, etc, that weigh in favor of laws to regulate the labor market. I think a great example is bans on NDA's or non-competes. They help make the labor market more liquid and prevent anti-competitive labor practices, even though they are a restriction on contractual freedom.
cbsmith 14y ago
> I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. That tends to work well in a one-size-fits-all well established world, but tends to work particularly poorly in new and emerging industries.

jiggy2011 14y ago

I'm not sure a one-size-fits all regulated solution is the answer. For example , what about a startup that wants to make signing of an NDA a requirement for employment? Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? What about employments that might deal with highly sensitive/classified information and thus require certain background checks to be performed before & during employment?

deleted 14y ago
[deleted]
pretoriusB 14y ago
>Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? Well, make that punishable by law, and no need for an NDA.
- jiggy2011 14y ago
  How? Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? The majority of jobs don't really require any real secrecy thus one size fits all fails.
  - pretoriusB 14y ago
    >Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? Yes. Pass a law forbidding anybody from talking about what they did at work, including to their family or friends, if they are warned by the company that their work is confidential. Then let a jury decide if they violated that. If you work at a McDonalds, they need not tell you to keep confidential about anything. If you work at Apple, they can tell you: "no telling to anyone outside of what we do here". No silly clauses about "all IP you create" and stuff.
    - jiggy2011 14y ago
      So presumably your employer decides which parts of your work are and are not confidential. They then provide this information to you in writing and the implication is that by working for them you agree to abide by these rules. In other words basically the definition of a contract. The only difference I can see in this case is that your approach would actually make it a criminal offence (presumably involving a possible prison sentence) to violate your employers terms.
      - pretoriusB 14y ago
        >The only difference I can see in this case Well, there's a big difference: they don't get to dictate anything about your personal projects, stuff you make at home, your sex tape and such. Only about stuff done at the workplace and pertaining to the work. Which is what the whole article was about, wasn't it?
        jiggy2011 14y ago
        I was replying to the original claim further up the thread that it would be preferable to abolish employment contracts and use only a standard set of legislation to resolve everything. This is different from simply arguing that certain clauses should not be enforceable.

wyuenho 14y ago

Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.

mistercow 14y ago
What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.
- pretoriusB 14y ago
  Well, "pro free market" is usually (and silently) taken to mean "whatever benefit me as an employeer and screw the workers". As in: "if I want to have people working 20 hours per day, with no overtime for less than minimum wage, I should be FREE to do so, and people are FREE not to work for me". That's the kind of "FREE" the free market stands for usually. Of course, when all employers follow the same idea, or when people are desperate to find any work to survive (e.g because of a lack of jobs in their city), the latter point about "choice" becomes moot.
  - lostlogin 14y ago
    A fellow cynic! I see FREE MARKET and straight away re-read the paragraph to see who is getting screwed. I'm rarely disappointed.
    - ansgri 14y ago
      As kylebrown noted the distinction between 'free from' and 'free to', your interpretation suggests that the free market is the freedom to screw everyone you could manage to. I like this description, but the question is: is it net negative for people / production / indvidual? -- a fellow cynic.
  - kylebrown 14y ago
    This train of thought leads to the philosophy of freedom: positive freedom (free to) and negative freedom (free from). I think the best way to think about freedom is not as a binary relationship (X is free from/to Y), but as a ternary relationship (X is free from Y to Z).

cracell 14y ago

Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it.

pretoriusB 14y ago
>Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it. The problem is that the effectiveness of this relies on the bargaining power of the employees, which, in a "buyer's market" is not that much. Better to get the law to change to forbid such abuses for everyone.
- bconway 14y ago
  If that was the case, sure. But in what world is this a buyer's market? At the last tech meetup I went to: Employers looking for developers: 11 Developers looking for work: 2 Austin, TX, for reference.
ChuckMcM 14y ago
In this case Sony is trying to change the agreement post employment. I wish the OP had said what HR said about ownwership of the sex tape, I really would have liked to use that example with the Google lawyers to see where they came down on it. I don't doubt that future contracts will say "We reserve the right to update this in the future as conditions change in order to remain compliant with applicable regulations and laws and in order to protect the interests of the company." Once you sign that, even with a permissive clause, they come back later than blam! Change it and you've pre-agreed to their changes which can now be much more restrictive.
benwerd 14y ago
In smaller companies you can sometimes rewrite the contract. I've done this, specifically to remove this clause.

sskates 14y ago

Yes, you can quit and work somewhere else. Also you can read about what Sony does on Hacker News and decide not to apply there for a job in the first place. I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively voids such clauses in employment contracts: http://www.quora.com/Legal-Issues/Which-California-laws-protect-moonlighting http://www.quora.com/Legal-Issues/Which-California-laws-prot...

pretoriusB 14y ago
>Yes, you can quit and work somewhere else. As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead? If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I think not, people would revolt and try to change the laws so that the company cannot do that. Why should BS NDAs be any different? People forget that: a) we're not necessarily talking about the top 1% of employees companies fight over, but also for the rest 99% of the people, that don't have an upper hand in negotiations and don't always have the luxury of moving around, staying out of a job long enough to find a better one, etc. b) we're not necessarily talking about a "seller's market" such as programming c) even if we did (b), we're not necessarily talking about now and the Valley, but also about times and places where unemployment is rampant.
- Symmetry 14y ago
  Not every company in your field is going to have contracts like that, I can pretty much guarantee that if you are willing to work for a smaller company you can negotiate something. And I did quit my job because we were bought by a larger company with a contract I didn't like just this summer. It's quite possible I'd be making more money if I hadn't restricted myself in this way, but, well, integrity is worth something. Also, what do you mean that being a programmer isn't a seller's market. Unemployment in our industry is just 2.5 percent!

andrewflnr 14y ago

If we're going to have regulation, I think it would be more productive for it to make it easier to quit your job. That should actually improve the free-market dynamics.

HeyLaughingBoy 14y ago
How could it possibly be easier to quit your job? If I want to quit my job all I have to is not show up to work and eventually, after a few attempts at communication, they will send me a form letter and my final paycheck and remove me from the list of active employees. Of course, being a more polite sort, I'd probably at least email my manager that I wouldn't be coming back. But seriously, how could it be easier?
- andrewflnr 14y ago
  Include "less dangerous" in "easier". Simply not showing up is not a good option for a responsible person trying to get ahead. Making sure the employment market is healthy and decoupling health care from employment might be helpful.

rayiner 14y ago

It's only "anti-market" if you fall into the common fallacy of conflating ideas of individual and economic freedom with the functioning of the markets. It's not at all the case that increasing say contractual freedom is always coincident with the improved functioning of the markets. The classic example is anti-trust law. Laws banning producers from forming cartels to fix prices is a restriction on contractual freedom, but they're a restriction that produces better, more competitive markets. There are a lot of considerations on the elasticity of demand for labor, information asymmetries between employer and employee, relative bargaining leverage, etc, that weigh in favor of laws to regulate the labor market. I think a great example is bans on NDA's or non-competes. They help make the labor market more liquid and prevent anti-competitive labor practices, even though they are a restriction on contractual freedom.

cbsmith 14y ago

> I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. That tends to work well in a one-size-fits-all well established world, but tends to work particularly poorly in new and emerging industries.