PS: you can do it too, they're completely remote!
> Other than with the prior written permission of the Employer, the Employee is prohibited during the term of the Employment Contract to carry out work – either paid or not – of any nature whatsoever, either for himself and/or for third-parties.
Personally I would never sign this because it prohibits any form of work for myself. Notably it would also prohibit any and all work for open source projects. Laughably this would also seem to prevent me working on my own house.
In fact, to my mind, this is a beyond unreasonable clause. And has really made me put on hold all the positive thought I had had for GitLab (which was relatively significant due to employee comments and my minimal experience with the product).
As you are the CEO I'm hoping you have a perfectly reasonable explanation for how such a clause landed in the contract.
If you have side projects (many of us do, for example https://github.com/jneen/rouge is maintained by our team member Jeanine Adkisson) we recommend you email us the name to have an granted exception on record. If you want we can also add it to your hiring contract. We never declined such an exception.
But if there is an IP lawyer that wants to make an alternative proposal for this language we're all ears.
As it stands the clause effectively prohibits anything done by someone employed by you, regardless of whether it has anything to do with the company or not.
Parts 15 and 16 are worded as IP and business protection. 14 is certainly over-reaching.
Taking the wording you have used it would appear that an employee has to request written permission from their boss to do practically anything:
* Participate in a code dojo or hackathon
* Assist a friend in moving
* Help someone change a flat tyre
* Change your own flat tyre
The absurdity of the examples follow directly from the absurdity of the restriction placed upon people accepting the contract.
Whilst an individual sensible enough to read the contract would likely raise issue with it, it is all too easy to pressure them into signing anyway with phrases such as "standard language", leaving all the rest not sensible enough trapped.
I also note it is ironic that you suggest an external lawyer gives free advice on rewording, presumably this lawyer would have to foresight to have pre-approved giving such advice with their boss as they operate under their standard contract?
Of course I understand this is very likely a complete oversight. And that GitLab is very unlikely to have any malicious intent in this. However I do find the existence of such a clause very alarming.
What do you think of the language used in 2b of https://www.docracy.com/53/employee-proprietary-information-... ?
"To the fullest extent under applicable law, the Company shall own all right, title and interest in and to all Inventions (including all Intellectual Property Rights therein or related thereto) that are made, conceived or reduced to practice, in whole or in part, by me during the term of my employment with the Company and which arise out of any use of Company’s facilities or assets or any research or other activity conducted by, for or under the direction of the Company (whether or not (i) conducted at the Company’s facilities, (ii) during working hours or (iii) using Company assets), or which are useful with or relate directly or indirectly to any “Company Interest” (meaning any product, service, other Invention or Intellectual Property Right that is sold, leased, used, proposed, under consideration or under development by the Company)."
Usually "using company time/equipment/etc." are viewed as things that you obtained via your employment with the company. But what about things owned by the company that I would have obtained via the same channels as any other customer. Does Oracle have a claim on IP created using a piece of Oracle consumer software by an Oracle employee?
I am not knowledgeable or awake enough to comment with certainty on the "or which are useful with or relate directly or indirectly to any “Company Interest”" as backtracking to what the 'or' refers to has broken my brain.
But on the whole that is the kind of clause I would expect. It is more than reasonable (I wouldn't invest in a company that didn't) to seek unilateral ownership over company related work, IP and assets.
Thank you for being so responsive, now I feel somewhat obliged to drop GitLab onto our stack of infrastructure proposals.
Don't feel obliged but of course I do encourage you to take a look at GitLab :)
As far as I know, several European jurisdictions would work in a similar way.
14. Additional jobs
Other than with the prior written permission of the Employer, the Employee is prohibited during the term of the Employment Contract to carry out work – either paid or not – of any nature whatsoever, either for himself and/or for third-parties.
Yeah, seems a bit much...
Like I can't mow the lawn for the little old lady next door. Or take my friends kids to school.
Can't mow your own lawn either. And if you're an Orthodox Jew you can't use an elevator or oven.
How would anyone enforce such a clause? Contract law isn't criminal law -the state nor federal prosecutor isn't going to come after you- so the aggrevied party would have to sue the other. Which wouldn't even make it to court for such an overreaching clause.
Edit: having said that, it seems unlikely a reasonable person could write that clause, so I'm not sure how such a thing could come about.
That understanding is entirely incorrect, unfortunately. While the law does provide for clauses that may be nullified or voided by either a court or existing case law, and does require a meeting of the minds and an exchange, simple "unreasonableness" is not grounds for voiding, nor is onerousness.
I am not a lawyer, but I am 100% certain that you cannot do this in Germany. At most maybe if the contract is limited to a time period and there are exceptional reasons why this would be necessary.
It is called "Scheinselbstständigkeit"  (only seeming to be self-employed). Contractors in Germany have to be actual businesses. They cannot be "weisungsgebunden" (bound to instructions), meaning you can only tell them what to do, not how to do it. E.g. you can have deadlines, but you cannot tell them when to work and so on.
The reason for this is to prevent contracts, which have the characteristics of an employment contract but do not pay taxes and social insurance.
That the contracts explicitly mention that possibility and have the "contractor" indemnify the company against all claims if a government or court finds the relationship is actually an employer-employee one doesn't help.
For instance, building myself a home server, fixing my parents' laptop, or even helping a friend move house could be construed as "carry[ing] out work [...] of any nature whatsoever", thus requiring prior written permission, which I doubt is the intent. The clause would be much more reasonable, in my opinion, if coupled with something like the following (this obviously isn't legal advice -- I've virtually no knowledge of Dutch contract law [and it's five in the morning!] -- just a rough idea of how the scope could be limited).
> For the purposes of this Article, "work" refers to any activity arsing from or dependant upon any of the Employer's facilities, research, or other assets or activities. It further refers to any activity which may be of use to, or relates directly or indirectly to, any product or service that is produced, sold, developed, researched, or otherwise under consideration by the Employer.
An IP grant could also be added if needed, along the lines of:
> So far as is permitted under Dutch and/or applicable foreign law, the Employer shall own all rights, title, and interests (including, but not limited to, copyrights, (industrial) design rights, patent rights, (semi-conductor) topography rights, plant variety rights, accompanying rights, trade name rights, trade mark rights, database rights) to any activities and inventions arising, directly or indirectly, out of such work (whether or not said work is reliant upon or conducted with any of the Employer's facilities, research, or other assets or activities), unless a written agreement is made with the Employer prior to the work commencing.
Like I mentioned, it's five in the morning here, so it's almost certain I've overlooked something obvious in drafting those (and it isn't legal advice!), but I would be much more willing to agree to a contract that limits the scope to things that are at least somewhat related to the company, especially given the penalty clause (article 21):
> For each infringement of the provisions of [article 14], the Employee will forfeit to the Employer – contrary to the provisions of article 7:650 of the Netherlands Civil Code – an immediately payable penalty of EUR 10,000.- with the addition of EUR 500 for each day (or part of a day) on which the violation continues, without prejudice to the Employer’s right to claim compliance and compensation of damages.
FWIW, I use GitLab for one of my personal projects, and I've had nothing but a positive experience, so I'm certainly not saying that the contract is malicious (nor do I believe it would ever be enforced frivolously/excessively). It just caught my eye whilst scanning through the contract as being excessively broad and something with which I would have a hard time agreeing.