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An Email Thread Between a Developer and Gigster (andychase.me)
821 points by mfts0 on Feb 1, 2017 | hide | past | web | favorite | 265 comments



That classic "well, nobody else has had a problem, so you must be the problem" response.

I remember at one of my first jobs, myself and another programmer were working on a side project (outside of work hours, not using company resources in any way) that were considering monetising. Our contracts stated that the company we worked for owned all of our code produced in and out of working hours.

We got to the business end of the project and decided to consult our workplace to find out how strict they were on this. The conversation with HR went something like this:

> Us: Oh hey there, can you clarify clauses X/Y/Z in our contracts regarding ownership of code. We are working on a project we are planning on monetising at some stage and we need to know if the company is going to do anything about this. Our project has no conflicts of interest and we haven't stolen any IP of the company.

> HR: Oh... We've never had a question like this before... We can't say exactly. We'd have to consult our lawyers.

> Us: Cool - can you consult them and let us know what they say, please?

> HR: Sorry, we can't consult them as they charge by the minute and it's too expensive to warrant a conversation with them.

> Us: So... you're not going to answer our question.

> HR: Exactly. You'll have to do it at your own risk.


The ambiguous IP clause is very common in UK programmer employment contracts. I've had two experiences with it. Most recently, I was able to insert a clarifying clause that said "work not related to company's business and not done on company time/equipment doesn't count".

Previously, I was working at a startup that didn't have this clause and employed a number of people who were Debian developers in their spare time. They introduced new contracts containing this IP clause. We discussed them and the whole department (dozen or so of us) simply politely refused to sign them. The situation quietly stalemated for months until the company ran out of runway and almost all of us were made redundant.

Collective action can work, guys. Few companies can afford to lost a lot of devs at once.


Quitting a job is a major, life-changing event for many devs and the question is whether such a clause in the contract is worth the trouble. That said, I disagree strongly with these intellectual property clauses in dev contracts.


If you already have the job and they try to make you sign something like this, don't quit, but say no. You may not be prepared to quit over such a clause, but it's also likely that they're not prepared to fire you over it.

They will probably tell you that you must sign it, or else terrible consequences will ensue. If those consequences involve the company, brush it off, because that's not your problem. If they involve you, then see if they're actually willing and able to carry them out before you make a decision.

I've heard many stories of attempted unilateral changes in employment terms like this where employees refused to sign. In some cases, they got mildly harassed for a while and then it petered out. In some cases, nobody even followed up. In some cases, they were able to negotiate the language to everybody's satisfaction. I haven't heard of anybody getting fired for it. (I'm sure it has happened, it just doesn't seem all that common.)


I've been counseled that an employer cannot compel you to sign a new contract after starting a job, unless there is an incentive to offset any rights/benefits being forfeited. There's a huge gray area in terms of incentive/benefit value, but it's clearly illegal if there are no advantages offered by the new contract and it only benefits the employer.

In other words, it would be clearly illegal for an employer to say simply, "Here's the new employment contract identical to existing but with a new, more aggressive IP ownership clause; sign it or you're fired." Contracts signed under these circumstances have been struck down in court.

However, it would be legal for an employer to say, "Anyone who signs the updated employment contract (with aggressive IP changes) gets free lunches and can work from home 2 days a week." I don't understand the caselaw enough to know what would happen if they provided the incentive and added "or you're fired."

In general, I think the idea is that you have a lot of freedom with new employee agreements, but you cannot just change out an employment agreement on existing employees to strip them of rights.

*IANAL, and it may vary by state.


> I've been counseled that an employer cannot compel you to sign a new contract after starting a job, unless there is an incentive to offset any rights/benefits being forfeited.

I would consider new council. I'm fairly certain that continued employment is enough "incentive" to make the contract legally binding. If you're an at-will employee, they can fire you at any moment, so any new contract seems as enforceable as the first.


I've gone through this before and the law is very clear that continued employment is not a valid compensation for changing the terms of your employment. The original employment agreement was the contract you are bound by. Coming to work each day is just both of you continuing to abide by the original contract. As you mentioned, the other side is the at-will part. It's pretty easy for them to just decide to dismiss you.


> I've gone through this before and the law is very clear that continued employment is not a valid compensation for changing the terms of your employment.

Please do not say things like this. A worker in Massachusetts, Illinois, or New York may read what you said, believe you because you said "the law is very clear," sign a new agreement thinking they got one over, and then roll out the other side to realize "oh, shit, that guy on Hacker News didn't know what he was talking about."

Whether continued employment counts as consideration is a state by state issue.


No, continued employment is not incentive, not under the law explained to me when I lived in AL.

Anyway, it varies by state and the exact situation. It's not necessarily true for any change, only if it withdraws a substantial right, e.g., forces arbitration or changes the nature of IP ownership. If you are concerned, talk to a local lawyer.

My real point was that it's not necessarily true that you just are automatically bound by the updated contract or that you have to sign it. It might be true, might not.


Counterpoint: my sister is an NP in Illinois and her employer did effectively this. She was asked to sign a new contract with strictly less benefits after having worked there for 9 months (specifically I think they wanted to reduce the vacation). She countered with requesting some compensation increase to offset the decrease in vacation, and they fired her. IANAL, but I'm also assuming that in at-will employment cases, this might be allowed. Again, I don't live in Illinois, so I'm not sure about how employment law is there, but while it might be shady, it might not be 'clearly illegal'.


Yeah, I'm sure it depends on the state.


Don't refuse outright. That'll just set up a primate dominance game with the people tasked with getting you to sign.

Tell them you'll check with your lawyer. It's always considered a basic right in developed nations to ask lawyers questions and it usually takes unpredictable amounts of time and it implies that someone with connections is employed to be on your side of any disagreement. That should be the last you hear about it. There's very seldom any need actually to hire a lawyer after saying it.


Yes. That's why collective action is so important: a company can avoid the loss of a single employee much more than the single employee can afford the loss of a job, but a company can't avoid the loss of even a single department quite as easily, let alone all employees of a certain type.

It's insurance for bad management decisions, effectively. It's useful for all the reasons insurance is useful.


If you are interested in collective action to combat clauses like this, follow Maciej Cejlowski.


Follow him how?


He's at 3rd and Market right now. Head on over.

(Or try here: https://twitter.com/baconmeteor )


Please correct me if my layperson's interpretation is wrong, but that IP clause is one of the few things I don't worry about in UK employment contracts. When I first came across the phrase "during the course of employment"[1] that they invariably use and researched it, I got the impression that it seems to have specific legal meaning of when you'd reasonably be considered to be 'working for' the company. At the place of work, on duty for them, using company equipment, etc.

There are much more egregious terms in most copy-paste contracts that you can helpfully point out to HR people if you're feeling helpful (or mean), including attempted rewrites of UK labour law (meaningless, it always takes precedence) or ceding rights, to more subtle things such as full-time jobs disguised as freelance contracts, putting you at risk if the taxman comes a-calling[3].

[1]: https://en.wikipedia.org/wiki/Course_of_employment [2]: It's mostly used to judge whether the employer is vicariously responsible for an employee's offences, e.g. was the delivery driver on his own time or was he in the course of employment when he hit the pedestrian? [3]: https://en.wikipedia.org/wiki/IR35


When I was working in the UK, I negotiated to change an IP clause from "during the period of employment" to "during the course of employment" for precisely the reason that you state.

Both parties were happy with the change.


> "work not related to company's business and not done on company time/equipment doesn't count"

We would have similar terms but sometimes people work at home not on company equipment or within normal working hours, so it's normal for this term to be a bit broader, but in general most companies would agree that you can keep the rights to work not related to company business (if you ask and they are reasonable).


I don't remember if it was mentioned in my contract, or if I just looked up state law. I remember when I had a job in Nevada, state law effectively said that work done on my own time, off premises, using my own equipment was mine. I realized that it would be possible to do work on my own time, with their equipment, etc. and I figured if I wanted to avoid a headache it would be my responsibility to make sure I clearly checked all the boxes before I tried to claim ownership.


So I've wondered this. If I use a work computer to update some person code on github or blog or whatever online, outside of business hours.

Does that fall into their equipment or not? I always assumed yes but I can find arguments for either answer.


I can imagine arguments for either side. My point was that you generally want to avoid cases that could go either way. State law said that if I met three criteria, then my employer couldn't claim ownership. I figured that if I only met two criteria, I might or might not end up in a fight with the company. So the solution was to be sure I met all three conditions.

From the company's standpoint, anything I wrote in the scope of my employment, using their equipment, was theirs. And, really, anything I wrote and checked into their source control was obviously something I was saying they had a legal ability to use.

But there is a lot of ground between what is clearly theirs and what is clearly mine, and I believe the best approach is to either avoid that ambiguous ground, or come up with an actual agreement to clarify any vagaries. You want it in writing, but it doesn't have to be an overly-formal contract. It could be a signed letter (from somebody with the authority to give up the company's potential copyright interest; which is probably not your immediate manager).


I just cross the whole bitch out and sign it.


There is a concept in law that it is the responsibility of the party making the contract to be specific.

For instance, if I hire you to paint my barn red and specify the shade of red, it had better be that red or you failed to meet the terms of the contract.

On the other hand, if I simply specify "red" then any shade of red would fulfill the contract. The lack of detail was my fault.

Depending on how specific they were, you may have been able to do it. Or, you could have sent them a letter telling them your intentions and let them either loop in the lawyer, or, at their risk, ignore the issue.


I believe the principal is called Contra proferentem. https://en.wikipedia.org/wiki/Contra_proferentem


And as I have learned the very hard way, a judge can just decide it doesn't matter and the appeals court probably won't care.

Please don't ever rely on how it's supposed to be - always, always put in clarifying statements and examples in any contract. Everything should be extremely clear and readable by layman, otherwise even things that should be obvious can be devastating.


Come on, people. Not "we are working on", but "if I were to start working".


Please don't advocate for making willfully misleading statements to one's employer which might have legal repercussions (IANAL, etc).


1. There's nothing willfully misleading about asking a hypothetical question

2. You do not have an "absolute transparency" duty to your employer about all aspects of your personal life. Please don't behave as if you do.


> There's nothing willfully misleading about asking a hypothetical question

Except the person I replied to wasn't advocating for "asking hypothetical questions", they were advocating for "it doesn't matter if you started a side project or not, when you ask your employer about how to move forward, make all efforts to imply or directly say that you haven't started a side project yet". That's not right.

> You do not have an "absolute transparency" duty to your employer

I agree, but I think there's a huge spectrum between "no absolute transparency" and "lying to my employer" and I don't think it's right (and it's probably not legal in the context we're discussing, but IANAL) to tell one's employer one hasn't started a side project when one has.

> Please don't behave as if you do.

Please explain how "don't lie to your employer about potentially legally important matters" is the same as "behaving like you have an absolute transparency duty to your employer".


You're using quotes to "quote" people saying things they never said, so this is not really a productive conversation any more.


I'm not using quotes to quote anyone. I'm paraphrasing what was said more clearly so you could understand my point better.

The quotes are there to separate the paraphrased words being discussed from the words discussing them.


yeah dude my mom programmed all that stuff in her spare time. <:0


One's employer is unlikely to be so forthright with their future plans. It should not be misleading to reveal only the minimum information necessary to a potentially hostile actor (speaking culturally, not legally).


> It should not be misleading to reveal only the minimum information necessary to a potentially hostile actor

I have no problem with this. But I see a big difference between asking one's employer "If I was already working on a project in my free time and wanted to take it further, what would I do?" and "I haven't started working on anything yet, but if I wanted to, what do I do?", when one has indeed started something already.


Why not draft up something to give to the company disclaiming all rights to your work? If lawyers are too expensive for the company, I'm sure they'll sign it right away! I'm guessing the HR person is just incompetent and the issue should be escalated.

What exactly does a company think is going to be the outcome of saying "Oh, BTW, we might sue you for this, we might not and we're not going to give you a straight answer one way or the other" to one of their employees?


In a lot (most?) companies, the issue would be escalated all the way to the top with the same results. There's no incentive for them to take action once you've signed their contract. As other's have mentioned in this thread, you should have demanded an exclusion cause before signing.


This 100%. I've crossed out sections like this without issue before. A contract is a negotiation, not a rubber stamp.

Some companies these days will allow you to list things which you work on (open source, second job, etc) which you can have excluded. This works fine for me as well.



The company knows what the outcome is already: 99% of developers sign.

So why should the company change?


I suspect that in the long run common contracts like that will become invalidated and a legal quagmire.

I have seen several contracts wanting to claim ownership over everything I write. I don't sign them, but it seems most people do and often do so at multiple contracting firms and employers. There are companies that should be having arguments with each over who own what contractors code.

Clearly this is not a reasonable situation and clearly it is unreasonable to try to screw a developer out of everything he owns and clearly it is hard to get a job without signing something like this. The runs afoul of anti-competition laws and basic decency. I am sure it will stand in some shitty jurisdictions and completely fail in others, but many already have some kind of work for pay law that transfers IP to the people paying for it by default and that seems pretty reasonable.


>The company knows what the outcome is already: 99% of developers sign.

I've rejected job offers like this before and not taken the job even after they offered to cut the clause out.

It's actually a pretty good proxy for overall unreasonableness and how much bullshit you'll have to put up with if you work for them.


I was considering taking a job recently(would have been 100% remote) that had the same kind of vague "everything you do is ours" clause(also had a similarly vague non-compete) in the contract when I received the job offer. I brought it up and mentioned I can't sign this contract because these issues. The most I could get out of the guy was, I can't think of it every getting forced so sign the contract and don't worry about it. If were out of work and really needed a job I probably would have, but I ended up turning down the offer.


What I usually do in this case is redline the contract and sign it. (Meaning, edit the clauses you don't like in an obvious fashion. Tell them you've done this.)

They will often not want to go to the trouble of going back and forth with the contract and will just accept it.


> Tell them you've done this.

Pretty sure you don't have to tell them if you return the contract to them modified and they sign it. They weren't going to tell you all the objectionable parts of the contract, so why give them information you're not required to give?

(IANAL)


IANAL either, but from experience everything that can be seen as shady is very dangerous if it comes to a court case. It makes you look like the bad guy, and can easily be used by a good lawyer to remove focus from what should really matter.

You want everything to be as clear as possible, and with no obvious points that can be called into doubt. Even if you end up winning, you don't want a court case that drags out for multiple years, with devastating legal costs to cover while its going on.


That's been my experience as well. I won't sign these types of clauses and haven't had issue with lining out offending portions, or adding them in...

Some of the docu-sign sites even have tools for this.. others don't.


I hate the "it doesn't really matter, so do it our way argument."

If anyone says it doesn't matter, we'll be doing it my way. Scratch it out, sign the changes and submit it back to them. Remind them they don't care about enforcing it anyway.


Just curious, what did the lawyer you consulted with say about it?


If it's too expensive to check ahead of time, it'll probably be considered too expensive to check afterwards too, no? Not if they smell money, I bet. :/


That's precisely what's so nefarious about this widely accepted set of terms: your company will be fine with you loosely interpreting your employment contract, up and until you become successful.


Along with the classic "not at this time" response.

Meaning, as it always does, "We won't answer your questions, ever."


Is this common in contracts??


It's a standard clause, but depending on jurisdiction it's at least partially invalid anyway.


California labor code explicitly contains exceptions to the work you do, which basically says that any work you do on your own equipment, during your own time, that is not related to the work you do during the day[0], cannot be usurped by the company using those broad, awful IP clauses. Anyway, this California labor code exception is why Silicon Valley exists in California and nowhere else.

[0] And often, I'm told, companies have the upper hand here, because they can often show that almost anything is related to their particular activities.


it normally has to be "related" to your employers business for it to be valid



Yes. Usually, I manage to get out of it (simply by asking and explaining).


I have it too. It would have been impossible to change, I was given a template contract and I do have side projects outside of my work. On the day I leave the job because my side project is making enough money, I would not be very nervous about it. How would they know?

I also have something like "should not work in similar area within The UK". Again, how would they know? This conflicts with data protection act, therefore invalid.


Wouldn't they be able to find that out from LinkedIn or social, for perhaps the majority of tech people? Not saying that you use social media, but it's possible they find out.


I think if you've got any sense then you'd leave your LinkedIn profile unchanged until the exclusion period in your contract runs out. The "non-compete" clauses in mine have always been around 2-6 months, they were never enforced. I binned LinkedIn so it's not a problem for previous employers to spy on me, and my social media content never mentions anything about work things.

For other social media then just keep your nose clean and stick to posting content and discussing stuff that doesn't mention work.

But that said unless you stole your previous employer's crown jewels (customer lists, source code, IP etc) then these clauses would get thrown out if you were taken to court. Imagine a Volkswagen car dealership trying to limit, contractually, the employment opportunities of their mechanics or sales people from moving down the road to the Ford dealership for better hours/pay/commission. They'd be laughed out of the court room I think.


Why advertising something like I have been working on this project for the last 5 years would benefit me in any way?

They could guess that I didn't create it in the last two weeks, but then good luck proving it in court.

I have much better relationship with my employer now, If I hadn't I would quit tomorrow.


In almost every case you're correct. If its a hobby project, or it allows you to make a normal living you're likely to be fine. The danger comes when you end up founding the next facebook and there is some real money involved. Then you might have the Winklevii suing you based on the clause in the contract.

They could get expert testimony about the amount of time it took to create, find old stack exchange questions let alone get court ordered access to git etc. They may not end up winning, but you could settle just to avoid the cost.

On the other hand, this definitely counts as "nice problem to have" and probably isn't worth actually worrying about.


A acquaintance once worked for two different companies for several years as watchman. He was fired on the spot when they found out. How did they notice?

One company bought the other.


Yes, extremely.


> That classic "well, nobody else has had a problem, so you must be the problem" response.

To anyone reading this that gets this response in a negotiation, this is the go to line for any experienced negotiator when you come to them with questions about a contract. Always. Its like negotiation 101. Do not take the response at face value. Its a canned line that doesn't mean anything on its own.

The typical response is to say that it makes a good impression on the organization that they have yet to have any contract disputes and then get back to asking about your specific issues.

Although, the harsh reality is that for them to change this contract means they need to bring a lawyer into the situation and that costs them money. So realistically you need to be in a situation where you have some kind of leverage in the situation. That is pretty rare when you are alone on the labor side as opposed to the capital side. Sometimes you have to decide between taking a risk of getting screwed or walking away. Unfortunate reality of our economic system as it currently stands. As unions learned a long time ago, labor protections via government regulation is typically more effective than private negotiation. Without that, most people just have to learn to accept they you are going to get taken advantage of and work around it.



No. This is the classic case of someone needing legal advice but not bothering to contact an expert. These IP clauses are not that bad if you are someone reading contracts daily. They arent asking for the world, certainly not for outside material. (Note the capital C in Customer.)

Seek legal advice. Not here. Not your buddy who reads supreme court cases and thinks he knows copyright from tradesecret. Go to someone with a license hanging on the wall. It wont cost any more than a filling by a dentist and probably less than your monthly cellphone bill.


I do contract work a lot in the UK through recruitment agencies. I very often provide feedback like this, especially when i'm asked to opt-out of the agency regulations. I never opt out, every single time i get the a response along the lines of "In my 20+ years of recruiting we've never had any problems with the contractor not opting out of the agency regulations, you're the first person to ever do that. Can i ask why you want to opt-in?"

My response is always something like "Thank you for acknowledging my contribution to the innovation to the recruitment industry, i'm very proud to be a pioneer in this field, being first is a great honour. One thing to note, i'm not opting in, i'm refusing to opt out, i dont need to opt-in to the law. I've chosen to do this because theres no reason to and the law specifically protects me from you forcing me to do so. Also, since your client has already decided to hire me, even if i was to opt out, it wouldnt be recognised in court as the opt out paperwork must be signed before i ever meet the client."

For this point on the agency regulations, i do it primarily just to make the recruiters work for their exorbitant markup on my day rate. However i do also question source code and copyright clauses like the author did, almost always, i'm looked at with dumbfoundment that i even bothered to read the contract.

If anyone wants to know the regulations i'm referring to, heres a link: http://www.contractoruk.com/agencies/5158.html


I don't think I ever signed an agency contract without heavily adjusting some clauses.

I would simply state I can't sign as is. The only times I got pushback (rare) an annotated letter from accountant or PCG (now IPSE I think) contract review and the agency buckled. I also demanded proof that the agency-client contract matched on IR35 terms. Was never once caught by it.

Does the agent want to lose commission? Does the agency want me telling the client direct why I've changed my acceptance?

I realise regulation and the market has changed some since I last contracted, hmm, 8 or 9 years ago. Still can't imagine signing any agency contract as-is, they were always horribly one-sided affairs.


This. In a business law class my instructor told me you should never sign a contract you are offered. Change it however you like and send it back as an offer. Or if you are being asked to sign something on paper mark it up with your pen, initial each change, and THEN sign it. If they don't like it they don't have to sign it.

Or better yet, if they send it to you electronically, change it however you like, sign it and send it back. If they don't read it it's kind of their problem.

I once got out of a compete clause because the recruiter told me that I should go to the fedex store, pick up this contract, sign it immediately and fedex it back. I asked about having time to read it and he told me not to bother. So I didn't.

When I was hired away by a competitor and he was yelling at me on the phone I reminded him of this. It helped that my new employer had indemnified me and was willing to pay the court costs to fight it for me.


> Or better yet, if they send it to you electronically, change it however you like, sign it and send it back. If they don't read it it's kind of their problem.

It's not really "their problem". The contract can be void because of mistake: https://en.wikipedia.org/wiki/Mistake_(contract_law)


Voiding contracts in these circumstances is usually exactly what the (former) employee wants. Even if there's outstanding payment, voiding the contract doesn't negate the need for payment on at least a quantum meruit basis for work already done.


When I was a freelancer changing the contract was a good way to gauge the level of respect you are receiving. If they say "take it or leave it" or "don't worry about it. It's in the contract but never causes problems" or "this is policy" the client doesn't respect you as a business partner and you will get problems later on. A good client will engage in discussion as long as your changes are not frivolous.


Indeed, I made some changes to a freelance contract once, and the business owner was extremely understanding.

It ended up being the best freelance experience I've had and I would recommend working for them with no hesitation.

OTOH, I've signed "take it or leave it" contracts, and it ended up being a soul-sucking corporate drone kind of affair.


My question is: Does this ever actually result in them amending the contract? If not, do you then refuse to sign (as I suppose OP did in the gigster case)? If so, what happens if you discover that everyone's contracts are similarly problematic?


I never worked through an agency. But when I was freelancing, yes. I refused to sign a bunch. For others I found the only way for people to listen was to have a lawyer involved.

Once my lawyer and their lawyer got to the point they talked directly, contract modifications and negotiation proceeded at a brisk pace.

But many companies were offended I didn't just blindly sign the contract. Even when they clearly contained clauses that were problematic.

I was also routinely handed contracts with clauses that would have forced me to violate other contracts if I signed both. For instance, one contract would require me to disclose anyone else I worked with over a 24 month period while another contract would prevent me from disclosing anything about an engagement. (I usually signed neither.)

Thankfully my main client's contract was eminently sensible, so I mostly worked with one amazing group of engineers for awhile.

Eventually some of the annoyances of freelancing made me come around to exploring a full time position. So I am in one of those now and enjoy it actually quite a bit.


Well given that the law specifically prohibits them from rescinding an offer if i dont want to opt out i gently remind them that if they try to pull any shit. Sometimes they'll just make the amend in the contract and that'll be the end of it, sometimes they want a reference for every single place i've worked at in the last 3 years (as a contractor thats probably about 20+ places), to which i tell them they'll get the standard 2 references and thats it, they also want verifications of every qualification i have, since i dont have a single qualification, only 12 years industry experience working for top names in the industry, that kinda solves itself.

Basically i dont stand for their shit, but i'm in a very privileged position of never once been desperate to accept a position, its always been very easy for me to find work. So if i need to walk away, i will. Its those who dont have this option and will agree to any terms put in front of them i feel sorry for.


What are your reasons for declining to opt-out, out of interest?

I looked into this law (the actual wording of the law itself even) and found it to be mostly harmless. I also came across the wording which nullifies the entire regulation from being enforced if you opt-out after an introduction, which happens in 99% of cases, so I wasn't too worried.


This is my thoughts exactly. I don't mind signing the opt out because it always follows an interview.


I've worked as a consultant for years. I occasionally employ a lawyer to review contracts with my clients.

As a general rule of thumb, I'll only work for a client under one of three circumstances:

1. The client's standard contract is reasonable. This is rare.

2. The client's standard contract is unreasonable, but they're willing to cross-out or rewrite the objectionable bits before signing. This is very common.

3. It's worth everybody's time and money to get our respective lawyers involved. Hint: This will cost at least $1000 for each side, assuming 3 hours of legal time at roughly $300/hour.

This sort of email thread is one of several reasons I wouldn't touch a site like Gigster with a 10-foot pole. If I can't renegotiate an unreasonable contract, I'm not a respected consultant, I'm probably an interchangeable body.[1] If you can't afford three hours of your lawyer's time, you can't afford me.

The other reason why I wouldn't touch a site like Gigster is that those sites almost always turn into a race to the bottom for low-value jobs for the most difficult clients. It's OK to do a couple of those jobs when you're starting out—but once you've done real projects, your time is better spent networking to find new contacts.

[1] I might make exceptions for very large and established organizations, for the right project and budget.


"It's OK to do a couple of those jobs when you're starting out"

I don't think it's OK at all. Some people will, for various valid reasons, need to work for sites like this for a long time or indefinitely. Even for those who only have to rely upon sites like this for a short time this kind of exposure to risk is not ok. It shouldn't be allowed. Contracts that totally indemnify a company in a situation like this shouldn't be enforceable.

I've been fortunate in my consulting, I take it you have too. Not everyone can rise above the rat race like we have and pick our clients to our liking. Furthermore, this is the future of work. The majority of new jobs added to the economy during the recession (sorry I can't find the gov't report) were considered "non-standard". This is the fastest growing sector of labor in the west. Ultimately workers doing "freelance" work deserve protections. Until congress reacts to this change in the labor force I believe it's incumbent on people like us to expose and push back on predatory contracts.


> Contracts that totally indemnify a company in a situation like this shouldn't be enforceable.

I definitely agree that as more people find themselves freelancing, we need to establish better legal protections for freelancers.

Lots of indemnity clauses are just ridiculous. Here's how to get over-broad indemnity clauses removed:

"Hey, I noticed you had some unusually strong indemnity clauses in your contract, which would require my company to cover your costs in situations X, Y and Z, which are outside of our control. As a general rule, we're not in the insurance business—we leave that to Lloyd's of London (laugh). But if this is important to you, I can look into purchasing a special insurance rider to cover these issues. This will delay the start date a bit and will obviously have an effect on the costs; I can get you a quote if you're interested. If not, we could replace this with <suggest standard, fair language here>."

If they're not willing to either (a) pay extra for the insurance they want, or (b) swap out the indemnity clause for something more neutral, then you walk. The only way to work for good clients is to discipline yourself to walk away from the bad ones. (Also, charge more, require a payment up front, and always quote daily or weekly rates, never hourly. This will improve the quality of your clients dramatically.)

Anybody who insists on broad indemnity clauses should be paying enterprise rates and the contracts should be reviewed by lawyers for both sides.

Another good approach is to pay to have your own standard contract drafted (without anything obnoxious in it), and send it to the client.


> "Contractor agrees to indemnify Gigster from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of this agreement"

There's no way that's legal, right? Like, you can have a broad indemnity clause, even for willful malfeasance. You can have a clause forcing arbitration. But Gigster's clause says "as part of this contract, you have no recourse if we intentionally violate this contract". Surely that's not legal, in the same sense that you can't sign a contract which flows entirely one direction. It literally states that Gigster can't be treated as having signed the contract they are currently signing.


> The other reason why I wouldn't touch a site like Gigster is that those sites almost always turn into a race to the bottom for low-value jobs for the most difficult clients.

I've never actually taken a contract from one of these sites, but having looked at them before, this has been my observation every time I've considered it. Spend 20 minutes browsing posted contracts, getting increasingly frustrated, and then just write off the entire site.

The thing is, these sites aren't well-suited for creating contract relationships. To make money, they want to keep you at the site. Plus all of the commissions, etc. It's just like Homejoy, etc -- the value add is in the initial intro, but they're trying to make money off of you perpetually. It's not sustainable and it's never that successful in the first place.

Word to the wise: if you want to build a site that does something like this -- any potentially long-term arrangement where money is being exchanged for services via contract -- start by building a cross between Craigslist and Yelp, and then, once you're established as a good way for clients to find contractors, offer them some kind of long-term value add (automatic invoicing, timekeeping, whatever). Monetize the latter, but keep the former free.


In my experience, it's very unusual for a company to simply state that it won't talk about it at all.

I get one of these two patterns:

1. "Oh, okay, we see your point. We'll cross out clauses X and Y."

2. "Oh, thank you, we'll take this very seriously. Now we will have people talk at you for hours about why you can trust us and everyone else here was dumb enough to sign up."


In my career I only had one case of #2. The person called me and said something like "if a partner isn't willing to sign agreement X, then we shouldn't be doing business with them". I said "ok" and hung up.

An hour later that guy's bosses boss called me to apologize..


I've experienced #2 once and seen it happen to a colleague once.


I've had "This is a standard contract and can't be changed."

I said I wouldn't sign it in that case, and suddenly it turned out it could be changed after all....


I've worked on contract projects for years too and I couldn't have written a better response. In that time I only had one client where the standard contract was reasonable. Contracts are 99% of the time changed before being signed.


But they have such a cool name.


Cofounder here. Really appreciate the discussion and all of the feedback. The spirit of the contract's never been intended to be unreasonably restrictive -- though I totally understand the concern. We wanted to include certain terms since as part of our model, we do own the code written specifically for Gigster projects. We certainly don't want to own code folks write outside of Gigster projects.

We've received very similar feedback recently and were going to do a review of the contract with our lawyers highlighting this specific issue. We'll also consider adding an FAQ around any contract nuances. We care about doing what is fair and while a lot of terms here are standard we'll try to review terms to make our position much clearer. Will share important updates.

Thanks


If this comment had been the last email response in the chain, I think that would have been great.

The fact that it wasn't, that an important issue was dismissed when raised in private, speaks far more to me than this public response.


Damage control.

They went from "lol, you're the only one with a problem, get lost!" to "hmmm, this is generating bad publicity.. now we definitely sympathize with your concerns!" real quick.

As far as I'm concerned, I now know all I will ever need to know about Gigster.

Your reputation is something that takes a lifetime to build and only 5 minutes to ruin permanently.


> Your reputation is something that takes a lifetime to build and only 5 minutes to ruin permanently.

This is the most important takeaway from this entire sad thread. Wonderful comment!


Thanks! But let me make sure I properly credit Warren Buffett for it :)


> Your reputation is something that takes a lifetime to build and only 5 minutes to ruin permanently.

A quote I read somewhere recently: your reputation grows like a coconut tree, but fall like a coconut.


> we do own the code written specifically for Gigster projects.

That's good.

> We certainly don't want to own code folks write outside of Gigster projects.

That's good.

But the contract apparently says something else.

This reminds me of a contract gig I had a while ago. I asked them similar questions about their contract, and they said "that's not what we intend to do". OK... so could they update the contract to state their real intentions?

A: No.

OK. I don't need the work that badly. If the contract starts with bad terms and them lying to me, there isn't much reason to move forward.


I mean, what would you like them to do? They're aware of it (and this thread obviously shined a brighter light on it) and are going to go over it with their lawyers. Isn't that reasonable? Contract changes don't exactly come quickly especially with expensive lawyers involved.

I'm just not sure what you would like them to do about it right now.


> I'm just not sure what you would like them to do about it right now.

The point is that when the contractor asked for changes, he got told to go stuff himself. It's only when there's larger publicity that they suggested the contract can change.

And, TBH, it's ridiculous to construe my argument as they have to change right now.

They were asked to change, and they refused. That's a problem. What part of that do you not understand?


I fail to see how I did anything to your argument. The original poster showed the email, the founder responded saying they're going to review the contracts because what's in there is not their intent, figure it out and then add a FAQ. You replied to the founder with a simple regurgitation of the issue and nothing more. The issue the founder just said they will be addressing in the comment you replied to.

So I wasn't sure what you wanted your comment to accomplish. Sounded like it wasn't fast enough but if that's not the case what do you actually want from this conversation with the founder? Do you want him to apologize to you? Do you want them to issue a public apology? What was your goal to avoid me from construing your argument any further?


You seem to be so focused on making your point that you have stopped reading the comments you are replying to.

At no point did the parent say that Gigster had to change right now. Rather, the parent made some reasonable points:

A.) Smart developers would not sign shitty contracts.

B.) When a smart developer asked questions about the contract, his questions were flat out ignored.

C.) Now that there is an outcry, the founder claims he will 'review' the contract.

If the founder had gotten involved in the support case, the response would be reasonable. Now, it stinks of a founder doing damage control.


> You seem to be so focused on making your point that you have stopped reading the comments you are replying to.

I disagree and felt I had already made my point and was attempting to clarify. But that's okay. Maybe I didn't convey it well enough?

I find emoting and conveying discussion points over a forum style doesn't always carry what my intent is and sometimes comes off wrong. Thanks for the feedback.


> At no point did the parent say that Gigster had to change right now

BinaryIdiot seems to be implying that I asked for Gigster to change right now.

And then there's this bizarre comment by him:

> > what do you actually want from this conversation with the founder?

I could similarly ask him what he wants from engaging with me.

> > Do you want him to apologize to you? Do you want them to issue a public apology

That's a telling level of projection. He's entirely unable to read English text as written.

Instead, he's like the 1950's fuddy-duddy who sees a picture of two people hugging, and immediately concludes that they're about to go fornicate as unmarried adults.


I think his point was: this thread made it clear that Gigster was being sketchy. The founder realized this and promised he'd fix it. Other than "go back in time and change their past policy" it seems like they're reacting to this situation in a reasonable way. No one disagrees that the original interaction was bad, but is it productive to keep harping on that when the founder seems to be making a good-faith effort to make it right?


This is exactly what I was attempting to convey. Re-reading the thread it still looks as if I accomplished that but based on the downvotes and confusion I'm guessing I didn't.

Oh well I guess.


> BinaryIdiot seems to be implying that I asked for Gigster to change right now.

I covered this here:

> So I wasn't sure what you wanted your comment to accomplish. Sounded like it wasn't fast enough but if that's not the case what do you actually want from this conversation with the founder? Do you want him to apologize to you? Do you want them to issue a public apology? What was your goal to avoid me from construing your argument any further?

> I could similarly ask him what he wants from engaging with me.

I was seeking an understanding of your comment and what you wanted to accomplish. From my point of view it appeared that the founder responded to the issue in the best way they legally could and then you just repeated the issue at him. Seemed less useful, more "I just want to be angry at you". hence why I asked.

HN is a community in which many interact with one another to seek better understanding, discussion around a topic, etc.


> I was seeking an understanding of your comment and what you wanted to accomplish. From my point of view it appeared that the founder responded to the issue in the best way they legally could

If that was true, the contractor would have been able to get the contract updated when he originally requested. And the original article wouldn't have been written.

> and then you just repeated the issue at him

I didn't "just" repeat the issue at him. Again, your inability to read text as written is showing.

I added an illustrative story from my own experience to show why such negotiations (even if addressed later due to larger publicity) come across as being in bad faith. As I saw in my story, as we saw in this case.

And then you went off the deep end with various accusations and projections.

It just came across badly.


Honestly, it seems like they're doing the right thing now, but it wouldn't be the worst thing in the world if the answer to this is, "They shouldn't have put it there in the first place."

Yes, it's probably some stock-standard boilerplate contract, but if companies can write contracts that contractors accept only on the assumption that they'll never be enforced, then when someone calls them out for it, they get to say, "Oh, people hate this? We'll change it (now).", what gives people the incentive to start with reasonble terms.


> it wouldn't be the worst thing in the world if the answer to this is, "They shouldn't have put it there in the first place."

Maybe? If you say a clause shouldn't be in there couldn't a lawyer immediately take you to court and get the document invalidated?

I wouldn't rush to saying anything about the contract IMO.

> Yes, it's probably some stock-standard boilerplate contract, but if companies can write contracts that contractors accept only on the assumption that they'll never be enforced, then when someone calls them out for it, they get to say, "Oh, people hate this? We'll change it (now).", what gives people the incentive to start with reasonble terms.

Gigster is a YC company so "move fast, break things" etc. They probably went with what was the fastest / cheapest at the time, no one had an issue with it and it was never brought up.


My point was that there's not always something to be done "now", and sometimes when you "break things" it, shockingly, has negative consequences that forward-looking changes can't necessarily undo.


Hi, Debo gave me a similar response... used my own SOW contract at the time but haven't applied to work with Gigster since you instituted the new terms.

What you're missing is are two clauses regarding clear indemnification of the contractor, especially as it relates to pre-existing code, and two, clarifying IP ownership on that same pre-existing code. Gigster seems to pre-suppose that any pre-existing IP the contractor uses in the course of completing the contract is somehow assigned as property of Gigster upon execution of the contract. This is crazy.


I have no horse in the race, but this response feels a lot like you handling the situation vs actually caring about being unfair to developers.

Once you do get the new version of the contract, I suggest you read it from a random developers point to view. Maybe even have a "Show HN". Aim for reasonably unrestrictive? Because of this blunder, you now have more to prove! You wont have much of a marketplace if developers don't feel valued.

Why is a FAQ about your contract required? Isn't the contract the canonical agreement? Are you, in case of legal trouble, going to refer to both the FAQ and/or the contract? Seems a bit weird to me.

ps: I've found "standard" contracts are what everyone says when talking about their own contracts.


If I have this straight, your terms of service grants you exclusive ownership of any work done by a developer in your employ. Correct? What about customers? The projects that you're taking on are driven by client requests. Do they own their website, app, or whatever after the project ends?


> We've received very similar feedback recently

So why was the line "We have yet to have a disagreement (much less a legal battle) over the terms here" issued to the developer?


It says

    > does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing
which absolutely, _obviously_ means you _do_ want to own or exclude code folks write outside of Gigster projects, since it says it can't contain open source code or be derived from or based on open source code. This is ludicrous -- almost every modern hardware or software product contains or is based on some open source or public code, including Macs (BSD code or BSD-derived code at core) all Android phones (all Android operating systems include and/or derived from open-source Android software), almost all web sites (based on/contains/derived from open source software like Wordpress etc.)

So, since you left that clause in there, you either fundamentally do not understand how modern software is built, or you do, and you thought that it was OK to pretend that it doesn't work that way and maybe somehow you could hold the developers responsible for the 'misunderstanding' if anyone called you on it.


So either your lawyers wrote terms against your request or you originally thought it would have been cool to own it all.

Or you have incompetent lawyers. None of the above really reflect well on you.


I interviewed to be a Gigster about a year and a half ago, and was accepted, but the more I considered it and saw how gigs were distributed (at that time mostly via Slack messages) I got a bad feeling, like I was a dog in a pack, fighting over meat scraps. It was then I realized the gig economy is not all sunshine and roses. All that to say, this doesn't surprise me, that Gigster doesn't have its workers best interest at heart, anymore than Uber has its drivers best interest at heart.


It hasn't changed. Gigster PMs seem to be in charge of staffing projects, but the strategy for connecting developers with projects is vague. They seem to look for either people they have worked with before, or people who are active on Slack (so if you are, for example, an Android dev, the advice is to be active on the Android Slack channel). PMs as a group hoard information on projects: devs have almost no visibility into the current set of available, unstaffed gigs.

Another issue I feel I should bring up: Gigster has problems paying out on time. The contract specifies net-15 terms for payout, but I've personally had a payment delayed for a month beyond that, with no visibility into why or what was going on. I often see complaints on Slack from others of payouts delayed that long, or longer.


I'm another current gigster, using a throwaway because I want to avoid retaliation. I'm posting this because Im really frustrated and about to leave gigster.

I just want to confirm everything you wrote there. Gigs dried up around october, meaning devs/designers that didnt have tons of PM contacts simply havent had any gigs for the past few months. This was raised multiple times, and HQ always promises to do something -but nothing ever comes of it, there's absolutely no info on how much work is in the pipeline, no transparency, nothing.

Then, as you say, everyone outside of HQ and pms has no way to apply for gigs. PMs guard this furiously and this leads to some pretty nasty interactions, completely unprofessional ones - pms being rude, brusque, dismissing, or keeping info from a dev.

One time I signed on a gig and only then did the pm tell me that I was going to be doing on-call duty. This wasnt factored in the payout, so I would make essentially 20$/h over the course of the gig. I tried to raise this issue with the Delight Team (internal customer service) but apart from taking 2 weeks to even get back to me - nothing was done, I was just removed from the gig.

Also, ditto on late payouts. A lot of people have had issues like this, payouts not going out for weeks. It's been a work in progress since early last year and HQ kept on promising stuff "yeah, we fixed this, itll be good now". At least theyve fixed their contractor-facing site, which was experiencing problems all throughout 2016.

Finally, the cherry on top - gigster, like other shops that hire contractors, is required to send a 1099 to the contractor and to the IRS by January 31st. As you can imagine, they've kinda failed here too. A lot of people didn't get their 1099s and a lot of people are reporting errors on their 1099s. It looks like they outsourced this out and whoever did it messed up transferring data from contractors' W9 into the 1099.


> Finally, the cherry on top - gigster, like other shops that hire contractors, is required to send a 1099 to the contractor and to the IRS by January 31st. As you can imagine, they've kinda failed here too. A lot of people didn't get their 1099s and a lot of people are reporting errors on their 1099s. It looks like they outsourced this out and whoever did it messed up transferring data from contractors' W9 into the 1099.

> For example, if you received miscellaneous income in 2016 that is non-employee compensation, the paying institution or individual must issue Form 1099-MISC by January 31, 2017. If the institution fails to do so, the penalty against the company varies from $30 to $100 per form ($500,000 maximum per year), depending on how long past the deadline the company issues the form. If a company intentionally disregards the requirement to provide a correct payee statement, it is subject to a minimum penalty of $250 per statement, with no maximum.

https://www.irs.gov/government-entities/federal-state-local-...


PMs as a group hoard information on projects: devs have almost no visibility into the current set of available, unstaffed gigs.

Their goal is to be remain necessary and collect a paycheck. They're middle-men and this is why I encourage devs to talk directly to clients and get used to solving client/customer/user problems through direct feedback rather than relying on the broken telephone system.

Also this is when unions and co-operatives start to look like a good idea. If Gigster and other sites like it were operated as co-operatives, where every freelancer is also a member of the organization, they wouldn't be so inclined to hire middle-men and to rip people off.


Just remembered - Gigster did a big press thing about the Gigster Fund - was meant to give contractors a piece of the pie (I think in equity), but there's no available written info on this internally and HQ declines to answer any concrete questions, just states that it's a work in progress (see a pattern here?) and that it's awesome.


Yeah treat your supply like shit, this bullshit about the place to be for a developer, better meat scraps at Crew, Toptal, Hackerbay?


They're even trying to replace their workers with automation in a similar way. See, for example, https://jobs.lever.co/gigster/19fc3d07-ba71-47d9-a77d-654c96...


Same here. I worked on one project, that was a trash fire. I took a month away to kinda clear my head. I go back, and there really isn't anything available, except for React gigs.


My standard reply to "oh we've never asked for someone's IP even though it's in the contract" is "great, then you won't mind me taking that term out, since you weren't using it anyway".

Remember, if it's in the contract, it's what's happening. Let no amount of promises persuade you.


Yep. I've done similar. Once, I'm pretty sure I dodged a bullet, because the person I was talking to went from sunny and gladhanding to really frosty and stiff in one sentence. (To be clear, I doubt it was some calculated IP grab effort. I just took the demonstration to mean that any future conflict resolution would be a mess.)


I give a similar reply when being asked to remove an interest penalty clause for late payment.

"We always pay our bills on time so there's no need for that!"

"Great! In that case you don't have to worry about every paying it either so we'll leave it in!"


Here in France the minimal penalty rate is set by law, and it's mandatory to put it on every bill, with the payment terms now. It's part of a crackdown on big companies crushing the smaller ones with unreasonable payment times.


UK has this too. Late Payments of Commercial Debts (Interest) Act. I think it is implementing an EU directive.

https://en.wikipedia.org/wiki/Late_Payment_of_Commercial_Deb...


What's the min penalty? The usual one I add is something along the lines of:

"Late payments shall accrue interest that is compounded 1.5% per month or the maximum amount allowed by law, whichever is less..."


So, the minimal interest rate is 2.79% (it looks like it's 3 times some kind of legal stuff). Interestingly enough, there is no VAT on it, but it's computed on the VAT price.

The debt collection fee is 40€, It seems to be fixed in law, and not a minimum.


I wish they'd do this in Canada.


This is a great response to almost any: "Oh, that's never come up, it's just in the contract" argument.


Sounds like you dodged a bullet there. Thanks for sharing. Kind of ridiculous that they wouldn't even comment on the questions or clarify a bit! Not to mention the fact they basically ignored the first email and didn't respond until a follow-up was sent 2 weeks later?

I mean, obviously I have no way of verifying the authenticity of any of this, so I'm just going to assume it's accurate. But in my experience this kind of behavior from companies is more common than it should be.


So, Gigster expects developers to sign an overly broad contract and yet they're not willing to answer any questions about that contract???

At best, that is a terrible way to treat developers. At worst, they just effectively guaranteed that only the most ignorant developers sign up with them. After all, the first thing I learned was to ask questions about every single ambiguous term in a contract.

If this doesn't change, I don't see anything good in Gigster's future. Smart talent will leave, jobs will dry up and the whole platform will disappear.


"We never had a problem with this clause before, why would you want to change it?"

Oh do I hate this line. But it's a two-way street. I'm very fortunate that for one of my first freelance gigs, I read the contract and specifically pointed out that I would be using personal/open sourced code snippets, and that I might want to reuse/open source some of the code I produced for them (only snippets with general interest).

They agreed without a flinch, and thanks to that experience, I'm going to hold every other employer to the same standard "I never had a problem with this request with any other employer, why would you want to refuse?"


>I'm going to hold every other employer to the same standard "I never had a problem with this request with any other employer, why would you want to refuse?"

I love that! I'm totally going with that next time :D Also, I'll probably throw in something like, "I'm surprised you say nobody else has mentioned it. This problem applies to anyone using open source code, which is basically everyone. Do you really want to hire developers who pay so little attention to details?"


I get the whole 'this isn't fair argument.' But these contracts impact peoples livelihood so I will attempt to help.

First, don't respond to HR with a complex set of legal questions. They wont know the answer and will push back -- corporate attorneys will charge astronomical amounts and these questions could even get the board involved -- which the CEO usually doesn't want to do.

My suggestions:

1) The strike: Print the document, strike out what you don't want. Scan it, return it to the HR dept. with, "Hey cool signed!". Only do this if you are pretty senior.

2) The re-write: Take the document rewrite it, with the statements you don't like removed, then return it to HR with, "Hey cool signed!"

3) The 'it is coming!' (for junior guys):

Take the email and delete it. Say you never got it. They will resend it, take it and place it into your spam folder, two weeks later say you never got it. Then reply back with your w9 two weeks later. Then if they complain reply with a w9 3 weeks later. Continue until you have clout then do 1 or 2.


I've actually tried that cute "Strike out clauses from your employment agreement you don't like and sign THAT document" tactic with several past employers, and each of them pulled me aside my first or second day of work and gave me a stern and clear "Sign it unmodified or GTFO" talk. In my experience nothing in an employment contract is in any way negotiable. I don't even bother anymore--it's futile.


Either they're bluffing completely or you're extremely junior.

We often spend $10k-$30k on each new hire. If you make it through that pipeline and they try to strong-arm you on the first day... they're going to have a rough time.


I don't think they were bluffing but I was not going to roll the dice and find out. Not a junior level guy either. I think these places that actually let you negotiate your employment contract must be relatively few, very small companies, with one HR person and lawyer and a lot less formality.

EDIT: Also, to be cynical: $30k is nothing for many companies, and likely less than the benefit of having IP rights to everything an employee makes in their spare time.


No, for senior people I almost always expect a strange contract negotiation. Juniors just sign.


Maybe they are bluffing, maybe they are not.

If you are willing to lose your job, I applaud anyone who does this fight. But lots of people are not able to do the same fight.

What does work is demanding to see the employment contract before joining the company. They can present you with a different contract on day one, but contract law requires a meeting of minds, and if they snuck a new clause in without calling it out, there wasn't a meeting of minds.


Don't look for jobs when you're desperate. Look for jobs while you're happy and comfortable in your current position.

It's like investing. Don't buy while the market is going up. Buy after a crash. Buy when the deck is stacked in your favor.

I (mostly) only ever actively look for positions when I'm comfortable in my current position. If a new employer really wants me, they'll bend over backwards to get me. I recommend everyone do the same.

Sometimes you may not have that leverage. In those situations, absolutely take whatever job you have to take to keep your house and keep the electricity flowing. But don't stop looking for a better job.

You are literally the only person on the planet that is going to look out for your best interests. The difference beteween a 100,000 and a 110,000 salary over 30 years is freaking $300,000 (not even counting for investment potential). Maximize your career for yourself.


They might be bluffing. But considering you've just left your old job, most people are not willing to take that chance.


This is why everyone should demand to see the IP agreement during negotiation.


This is why they should be outright banned.


Employers need to be able to make sure they own the code you write for them. Otherwise nothing works.


In my experience employment contracts are negotiable if and only if the negotiations are carried out BEFORE accepting the job.

Before responding to an offer, I've found it important to ask, "Please also send me a copy of the employee handbook and any employment agreements or other documents that I will be expected to sign on the first day of work."

I've done this ever since the time I quit one job, started another and then on the first day was presented with an HR packet full of "standard" forms to be signed.


Note that you can't do #2 if an officer of the company signs it first. But in my experience, documents like these don't even have a signature line for anyone other than you. So long as you are just unilaterally agreeing with yourself, you can agree to anything you like. You can write in that you're going to treat yourself to ice cream on the first Friday of every month!

I wonder why companies even delude themselves into thinking such things are enforceable without a real, negotiated, two-party contract, with valuable consideration given by both sides.

It's essentially just signing the document that says, "I have read the corporate handbook, including the company policy on X." If you violate the policy on X, their remedy is to dock your pay or fire you from the company. They can't lawfully enforce anything in court. (Which isn't to say that they won't ever win. The courts tend to favor those willing to pay the most to win.)


"Note that you can't do #2 if an officer of the company signs it first." NEVER EVER seen this. Hell. I have never seen two signatures on anything in 12 years. AND I always add "you're going to treat yourself to ice cream on the first Friday of every month!" -- obviously. The point is no one checks - HR just wants to thumbs up.


They're still pretty enforceable. Not legally enforceable, but most people don't know their rights and aren't brave enough to test them, so waving some documents in front of them while saying "you agreed to this!" is enough to get compliance.


I recently got accepted in to the Gigster network and I haven't received any new "gigs". They seem to have poor process for onboarding a newbie in terms of allocating projects. Most of the projects require people with Karma more than "350+" or "321+" - whatever that odd number means - (the default karma is 300). With more than 500 developers and designers in the network it is becoming more and more difficult for newbies to get any sort of project. Because the number of projects are not flooding in as the new members of developers

The probability keeps getting lower as new members join :|


This is especially troubling since it appears that Gigster is directly aimed at software development, not generally connecting people with contract jobs.

I wonder if they even have a lawyer familiar with software development on-board.


>I wonder if they even have a lawyer familiar with software development on-board.

I imagine they do, specifically so that they can own their developers to the greatest extent possible - see Uber etc. (and I am referring to Uber drivers, not developers.)


> I wonder if they even have a lawyer familiar with software development on-board.

Sure they do -- and that same lawyer approved this agreement (if she didn't draft the whole thing for them) that is weighted entirely in favor of the company and their interests.


Legal Shit 101... if someone asks you to sign a contract, right away assume it's weighted in their favor. You have to read the contract before you sign it. Take your time, feel free to ask for a take-home copy and ask your lawyer to review it. Having asked a lot of people to sign contracts over the years... I'd say 90-95% don't read it and just sign where they are told to. Expedient...

The contract template was written by the company's legal team to protect the company, it may have some terms in it that seem like they are an "agreement" (like how you'll get paid)... but really the goal is to keep the company safe. And, to be fair, I'd fire any lawyer who didn't give me a contract like that... so it's not the lawyer's fault. But if you sign it... you're agreeing to it. Easy solution: don't sign it. (But of course you presumably want the job.)

Middle-ground solution: Read the contract, red-line / annotate things you have concerns / questions about, and ask if you can speak with legal. If it's a small business... they will probably weigh you comments against their lawyer's hourly cost... and more often than not just agree to let you cut things out of the contract. If it's a larger company... you're probably locked in if you want to work there -- that's just the reality of it. If you talk with legal, do your best to understand what their motivations are and make sure the contract is explicit. You can also ask for exceptions for side projects by simply declaring, "Any work done for side projects X, Y, Z shall not fall under the scope of this contract."

Anyway look, it's a negotiation. You can test the limits, nothing is set in stone. You're the only one who is on your side. Everyone else is out to fuck you. Safe assumption.


Reminds me of when I was outright sued over a YouTube video on my channel - twice.

It doesn't matter how many "thousands of successful milestones and payments without issues with the terms," there is a vital flaw (in their favor) with said contract.

Contracts are easily done on a case-by-case basis, and dubious clauses are routinely renegotiated.

All of this is irrelevant however when even the lawyers won't answer a simple contract law question. I won both of the suits mentioned above by proving their position to be indefensible.

Which I believe you have done. Keep your integrity, your current and future clients will recognize it.


Developer disagrees with terms.

Reply is:

> We have yet to have a disagreement (much less a legal battle) over the terms here.

Ok then.


> "does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing"

This contract has probably been written by a lawyer who doesn't understands software development.

I run digital agency and we've lost projects in the past that couldn't get past legal departments because they did not want us to use any open source software (or transfer the copyright to open source work)


Another touchy issue is non-competes after employment, meaning that "you can't work for anyone else or hire our employees." States such as CA are very much against anything that restricts someone's ability to engage in free trade, especially when the restrictions apply post-employment. Imagine how ridiculous it would be to ask this of independent contractors, whose roles are defined by that they engage with multiple clients at once and have looser associations--that is, they are independent. Yet I see a lot of CA contracts for independents hold this clause, and even argue for its fairness.

From the BAR[1]:

  Not only are non-compete covenants void in California, but an employer may be
  liable in tort for wrongful termination if it fires an employee who refuses to
  sign an employment agreement that contains an unenforceable covenant not to
  compete. D’Sa v. Playhut, Inc., 85 Cal. App. 4th 927 (Cal. Ct. App. 2000). This
  rule holds even if the agreement contains a choiceof-law or severability
  provision. Id. at 934. The concern is that the presence of an unenforceable
  non-compete covenant in an employment agreement may have an undesirable
  deterrent effect on employees who do not know their rights under California
  law. “[I]t is not likely that [the defendant’s] employees are sufficiently
  versed in California’s law of contracts such that they would know (1) that the
  covenant not to compete is invalid and therefore not enforceable by [the
  defendant] and (2) that they could sign the agreement without fear they would
  be bound by the covenant not to compete.” Id

Read your contracts. Get attorney review and specifically ask about the parts that make you uncomfortable. If you're planning to make $XX,000 or more from this engagement, isn't it worth the $100-$300 for the guarantee?

[1] https://www.americanbar.org/content/dam/aba/events/labor_law...


Horrifying. Always read your contracts and remember to abide by what you have signed, or don't sign at all.

For companies, you all should be very clear on what your contract allows and doesn't allow. That will help everyone and allow folks to self select away from you if they need or want to.

I understand the motivation of Gigster (own as much of the output of a developer as possible while at the same time pushing as much risk as possible to the developer), but agree that such spooky terms don't help attract talent.

The only way to get rid of these kind of labor unfriendly terms in the current environment is to avoid them like the plague.


Publicly shaming Gigster like we're doing here should help.


> does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing (unless approved by Gigster in writing)

So is a Gigster developer contractually obligated to build everything from zero and take advantage of no OSS whatsoever? This seems like asking to handcuff your developers into writing terrible software by reinventing the wheel.

Or do they have some additional "in-writing" approval document that specifies acceptable OSS licenses? Several companies I've worked for had lists of OSS licenses that were reviewed and approved by general counsel as acceptable (pretty much the list boiled down to BSD, MIT, Apache).

Then again it seems like if that were the case, the sensible approach would be to write the contract such that using open source software is acceptable, so long as it is offered under a license that appears on an approved list and does not obligate the release of the entire project's source code.


As bad as I think Gigster's agreement is, this clause is a good place to start from. It means that they don't have someone shoving GPL code into a project that must remain closed source.


I recently learned from a github discussion that if you work for Amazon, Google etc. you are also not allowed to work on any open source projects, even on your free time without their permission.


Ex Amazon employee here: Amazon requires employees to obtain written permission even to contribute in your free time and this makes many developers unhappy.

However the company does not claim copyright or patents on work-unrelated ideas and (closed-source) projects.


What happens if you don't obtain permission?

Do you get fired, or do they claim ownership?


Ex Amazon: You are in breach of contract which is grounds for termination.

I doubt that would happen in practice though, unless you were creating an open source competitor to something they do or somesuch.


> I doubt that would happen in practice though,

Having to worry about it is horrible enough, since this will actually keep many developers from pursuing their passions in their free time.


> Amazon requires employees to obtain written permission even to contribute in your free time

I would never agree to this. Generally, if you work at a place that commonly throws around the phrase "<X> is in breach of contract which is grounds for termination.", you're in a bad job that will not ever teach you anything or advance your career. You are working as a glorified contractor and should learn some warning flags to avoid the terrible corporate bus stops.



Would it be possible to link that discussion?


Interesting. This is from 2010, but random googling took me here: https://github.com/snapframework/snap-server/commit/5e4850d4...

    The situation is quite simple:

    - pre-existing work I contributed to this project remains under my copyright
    - contributions other people make to this project remain under their own copyrights
    - contributions I make to this project subsequent to November 2010 are under Google copyright
    - nobody should really give a shit about this because a) I freely agreed to this even though Google has a process where I could have asked to retain my own copyright because b) the code is BSD licensed and you can use it however you like regardless of who owns the copyright.
~ https://github.com/gregorycollins


This is correct with respect to Google's process.

When it comes to Amazon, you have employees sending patches upstream anonymously because the company culture is against contributing anything back to the open source community.


sure no problem with that. Learned it here: https://github.com/tekezo/Karabiner/issues/660#issuecomment-... then googled about it (what irony) and then found out this is common practice at big tech companies in USA.


My company has a policy of allowing you to work on open source after getting approval from legal. It also seems that all emails to legal are routed to /dev/null . I wouldn't be surprised if other companies act the same way.


It's true. Because with tens of thousands of employed engineers sometimes employees actually go "hey, I can improve this open source ad network search engine whose mission statement is to take business from google", and that is why they can't have nice things without getting a quick approval first.


The "quick approval" iirc involves emailing a VCS diff for every pull request for manual inspection. Google is a great employer but this is something I don't miss.


It's not as bad as that. It was never "every" and it's been improved a bit not too long ago too.


Yes, basically. For open-source projects where google retains the copyright you don't need special permission (it is part of your job, basically). For personal stuff or where you wish to retain the copyright then you will need it assigned to you.


Except in California and Illinois as state law forbids these types of terms in contracts; and as an employee or contractor by law you are sometimes not even allowed to sign theses rights away. [0]

[0] 'Moreover, some states, including California and Illinois, have laws that limit the effectiveness of assignment-of-inventions agreements where the invention was created outside the inventor's employment with the company.' -- http://www.masudafunai.com/showarticle.aspx?Show=5942


Washington state has that as well!


This is obviously untrue, as evidenced by the multitude of people here on HN and at PyCon and other conferences who work at Google and routinely work on open source projects.

edit: I see - I initially misread parent. Yes, some Googlers are work-for-hire.


They presumably asked for permission first.


Ahhh, right. I initially misread.


As a developer / software engineer you have plenty of opportunity. Do not sign contracts with such one sided clauses.


This type of thing is what first pushed me away from Gigster. It's like the overly broad employee invention assignments that a lot of companies want you to sign. No thank you.


This is not just for contracts. Gigster does that even when recruiting. After three rounds of interview, I got a canned response that they are unable to take my application forward.

I asked them for feedback and got the same reply that they can't provide any feedback (even after 3 rounds of interviews).

I reached out to the developer who interviewed me and after a couple of days, he replied back saying that Gigster doesn't allow him to provide any feedback!

Avoid interviewing with them, in my opinion.


This is true of practically every company. It's a liability issue - companies are afraid that feedback will be used in a lawsuit, so their favored course of action is to say nothing.


"We have yet to have a disagreement (much less a legal battle) over the terms here. We have completed thousands of successful milestones and payments without issues with the terms and we unfortunately cannot adjust them on a case by case basis."

Note to self: Don't hire Gigster developers. If a dev does not pay attention to this kind of stuff or thinks it's okay, I don't feel all that comfortable having them work on my projects.


There is a lot of legal misinformation in this thread, as is common on HN, both on the substance and practice-in-fact. For readers in a similar contractual pickle, take things read here with a grain of salt. Most assume very specific things about your information and bargaining position which may not apply.

In general, the applicability and effect of broad catch-all employment agreement's clauses will vary between jurisdictions - This is part of why they're drafted in a hyper-defensive manner. No small business is going to shell out for legal to obtain 300+ jurisdiction specific form agreements.

There may be very clear bright-line rules dealing with your issues as raised which put you in the clear, but you won't know unless you consult an expert. Because of the nature of the employment bar, you can get straightforward accurate advice for very little investment - if you approach obtaining advice properly.

Take the time to draft an email to local employment counsel setting out your concerns, attaching the proposed agreement and setting out the scope of review you would like him to perform. Ask for a quote. Repeat until you find a good fit.


This is a great example of something people should always look for. Contracts can be very uneven with regard to the rights of the parties. And if you ask to balance one out and the other party refuses, walk away. They will screw you.


A contract needs a couple of things in order to be valid:

1. A meeting of minds i.e. both parties agree on something.

2. Consideration; usually money. (This is why you sometimes see donated things sold for a dollar.)

When faced with signing a new contract that asks for more of something, I'd recommend asking for consideration of some sort. (1)

"Oh, new contract? Let's talk about my new salary."

(1) At least if you're an in-demand software developer.


Continued employment counts as consideration in many states.


The old "I won't beat you up if you stop seeing my sister." "consideration".

But you make a good point that I wasn't aware of.

That's why it only works if you're in a field like software development where you have some leverage.


I did a pre-screening with toptal and literally had these same questions... And they basically had the same responses. No thanks!

I understand especially with the race to the bottom they'll always have someone new enough to sign these types of agreements, but everyone I know with experience or seniority avoids the platforms because of how ludicrous these restrictions are.


Ahh.... sounds like the script for a future Hollywood movie:

"How to Lose a Talented Developer in 10 Seconds"


I would like to see similar threads published for the contracts used by other work sites and even clients using standard Legal Zoom contracts. This stuff is important.

I always say: If you haven't been fucked you haven't been in business very long.


Usually, if your side project make little or moderate money, no one cares. If your side project turn out to be Facebook, they might sue you to get a piece of your success.


From their website (homepage):

> Gigster is a smart software development service, combining top developers and designers with artificial intelligence.

Am I the only one who does not understand what that even means?

Do they bring together matching developers and designers using their artificial intelligent algorithms or the developers and designers they hire have artificial intelligence?


After seeing this, I have zero respect for gigster or anyone who empowers this behavior.

They're asking for unilateral power to end the software career of any of their contractors, even decades into the future. Worse still, the demand their contractors to sign away any legal right to recourse... And in exchange they offer mediocre contracting work.

Screw those guys.


If you can clearly demonstrate that you are not competing with your employer, using their IP, working on their time, using their equipment then these types of non-competes should be null and void. And yes, I quit a job over that kind of contract. If I invent something on my time it's mine.


P.S. It would be interesting what stance they would take to you being named as co-owners of any IP developed, and royalties paid for any further use beyond current project. My brother is a mechanical engineer and original designs in his lab always have him as a registered patent holder.


The contracts I have when working with clients specifically mention type A and type B deliverables. One being "secret sauce" IP that the company owns and the other being general development tools and practices that I own and grant a perpetual license to the company to use.


Good to know Gigster really doesn't care about the developer. Will let my friends know not use it.


More training data for that bullshit detector that was on Show HN the other day.


I joined Gigster mid-November 2016 and had similar concerns as the OP regarding specific clauses of the contract. This is definitely a tough situation for a developer going through onboarding-personally I wanted the first impression I left to be that I'm a "team player," as opposed to starting a legal battle on day one.

Unfortunately, these interactions always seem to favor companies over individuals. People in general don't enjoy bickering over legalese so individuals don't want to ruffle feathers by pushing back, while company employees are able to take cover under the umbrella that they're just following policy. Truthfully though, it is most often companies-not prospective employees-that initiate legal discussions by presenting contracts and individuals should feel justified in verbalizing any concerns they have. I think this is possible while still remaining professional and courteous.

The first thing I did was look to Google to see if any other developers in the past had similar concerns as me, which brought me to this Quora post - https://www.quora.com/Is-the-contract-for-Gigster-reasonable... Richard's response was helpful and thorough (if you're reading this, thank you!) and although he had additional issues with the contract, my main concern was with sections 2.1 and 2.2 (assignment of IP to Gigster for work not specific to the customer and the exemption of pre-existing IP from being assigned to Gigster including only that which is explicitly outlined, respectively).

I actually discussed the contract language with my family and got some good advice from both my father and brother. They agreed I was within my right to voice my concerns so long as I did it in a productive way. For example, instead of presenting problems by just stating language I didn't like they told me it would be better to provide solutions in my response by offering amendments that I would feel comfortable with.

To this point I had interacted with three individuals: 1. The person who had reached out to me about joining Gigster 2. The individual that emailed me the DocuSign link containing the contract and 3. The individual that sent me a (possibly automated) response after my application was submitted to their website. Let's call these individuals Peter, Paul, & Mary.

I emailed my concerns to Paul and Mary, not knowing which would be better to handle this sort of thing. I received word back from Mary saying that Paul was more familiar with the contract so she'd let him handle it. After two days I received an email from Peter asking for an update on my onboarding process. I explained that I had emailed Paul about the contract and hadn't received word back but that I'd ping him again. Peter told me he would also follow up through other channels. I never did get a response from Paul personally, but after another two days I received word from Peter that he had spoken with Paul and the Gigster legal team and was wondering if I could hop on the phone.

Peter was very open to my concerns and explained the reasoning behind the contract language. I said that I understood, but that admittedly I still took issue with it. Peter seemed to understand and honestly that was pretty much that. He offered to share a Google Doc with me so I could highlight/tweak language I was uncomfortable with and afterwards the contract was promptly signed by both parties.

I also reached out internally to Peter, Paul, and Mary over slack before making this post so they could have a heads up. Paul explained to me that he was not really involved with the Gigster contract or its hiring policies, just that his role involved setting up the onboarding tools and this automatically attached his email to a lot of the communications; which would explain the lack of responses I saw. Paul told me he was “neither encouraging nor discouraging [me] from posting,” but Peter and Mary responded in support of me posting my experience to HN, which I thought was pretty cool.

For future reference here is a portion of my email to Gigster containing the changes I requested, which were accommodated:

I am a little uncomfortable with some of the language in sections 2.1 & 2.2 and was hoping we could revise:

a. Section 2.1 assigns ownership to Gigster not only of all Deliverables, which makes total sense, but also of all source code "including but not limited to source code developed or created by Contractor that is not specific to Customer and is generally applicable to other Customer projects and deliverables ("Community Code")." This language seems quite broad and what constitutes "Community Code" seems a bit difficult to define; I'd prefer to remove the last part of this sentence so the section instead reads "...or any Confidential Information (as defined below) (collectively, “Inventions”). Contractor hereby makes all.."

b. Section 2.2 exempts any of my pre-existing IP from being assigned ownership to Gigster, but then seems to require all such pre-existing IP be disclosed in writing. This seems difficult and probably unnecessary so I'd like to remove "in each case ((a) and (b)) that are expressly set forth in writing to Gigster prior to delivery of the Deliverables to Gigster." and just end the sentence after "any intellectual property rights therein."


probably someone paid a lawyer to draw up, or copy-pasted that contract and then people who don't really care about their job to a serious level, or maybe just don't think very much, are saying it can't be changed - probably without even asking anyone who has authority to make that kind of decision.

if you can get in touch with a director about this, and they are smart, they will probably want to fix this for everyone after about a moment's consideration.


Have a contract that you draft that they counter sign. Set your own terms there. Any potential conflict would have to go through court in any case.

Obviously not legal advice.


Yikes. Just applied to gigster the other day. This thread has definitely made me reconsider.


Another UpWork in the making...


My first thought: WTF is gigster?


Yeah, I thought it was a new kind of hipster..


Had to Google it too!


Me too


Part of YC S15


[flagged]


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Hey, I thought their answer was absolutely great!!!

My thinking, reading ONLY the dev's original email, was the same as what they wrote: then I read their reply and found their phrasing MUCH better.

Here's all you would have gotten from me:

------------------------------------ answer email I would have written ------------------------------

>Some questions I have about with this contract: (allowed for by section 11.5):

>>"including source code developed by Contractor ... generally applicable to other Customer projects"

We do not claim the source code for work you do that is unrelated to and not used by your work for us. If you develop some tooling that is general but used in the project, you have to assign rights. If you can't assign rights (for example it's open-source) don't use it. Use only new code that you develop and assign over to us fully.

>"Contractor agrees to indemnify Gigster from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of this agreement"

Your reading is correct and we have absolutely no desire to appear in court for any reason. You waive all your rights to sue us. If you do want to sue someone, you will have to go work for a big company and go sue them, they will be happy to appear any number of times to dispute anything you want. We are not going to change that language.

That said we haven't had disagreements and don't intend to have any - we rely on you, after all. Put another way, we pay you more instead of taking that money and paying some lawyers to go argue with you. (This clause specifically prevents frivolous lawsuits - I want to reiterate that we don't have disputes with our developers. You can go talk to them and see how they are treated.)

>>"does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing"

>So I can't derive code from examples from django or flask documentation, cited stack overflow snippets, etc. etc. in my work? I'm not sure that would be a very effective way to operate.

There is nothing stopping Django from suing anyone using any of the source code they have included in their documentation. Copyleft is even stronger and our clients would be bound to freely make available the complete source code used by anything.

My suggestion is to learn to program, by reading documentation, and then simply code your own solutions. Likewise you can certainly peruse Stack Overflow for inspiration.

I will add that as a general rule we are not concerned about software patents, so that you do not have to be concerned about your "inspiration" leading you to use a technique whose implementation is generally protected (no matter what specific source code implements it).

However, as legal advice, please don't actively seek out patent status (willful infringement is a multiplier on damages) and if you do learn of a software patent affecting an algorithm you wish to use, seek an alternative. We've literally never had an issue with licensing.

So to summarize: by all means, read other people's code to learn a language. Read other people's responses on stack overflow and in documentation to learn specific approaches. By all means learn to program, from any source you want. Write your own code and assign it to your clients.

I hope this helps answer your questions as well as tell you some of our thinking. Our developers are treated very well. Let me know if there's anything else I can tell you or if you have any other questions!

"

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

that's literally what I would have said. There's nothing that needs clarification or change and the language the original dev quoted is incredibly clear and perfectly fair.

But, man, their response is even better. It says the same thing - but so much better. (Actually I lied - I wouldn't have thought of saying they treat developers really well -- so I included that part in my statement of what I would have written, even though I wouldn't have written it.)

In all this is awesome work by them : )

I don't have any disclaimer to make - no relation to the dev or Gigster.

--

EDIT: I got downvoted but their response is still absolutely fine.


[flagged]


There's nothing anti-developer in what I wrote. (Or the original reply.)

If I received such an email in response to my own question I would be reassured.

I'm not towing/toeing the company line here. There's simply nothing wrong here.

--

EDIT: in reply to your followup, no, I googled and it's some Trump spokesperson? (communications director). Basically I took it (in this comment I added this edit to) that you were saying I'm being counterfactual and spinning things, but I wouldn't have an issue receiving that email, as a developer, to a place I applied to. It would reassure me. I don't think it's spin - I think the original developer we're reading about is off-base.


What is problematic about what you wrote, is that it requires absolute confidence in the good behavior of the company; that it affords no protection to developers from malicious behavior by the company; and that it does not afford developers the same trust on an equal footing.


I disagree, as a practical matter none of what you wrote is true if I received this email. As a developer.


[flagged]


can you explain?


I'm not trying to defend gigster (broad indemnification clauses are bad news), but if someone framed those questions to me that way, I would also be hesitant to respond to them. It raises the "I'm going to be a handful" alarm.

So, I understand why they were hesitant to respond and didn't want to comment on it.


I don't agree in the slightest. If anything, developers who ask questions are the ones you want most. One of the worst traits in a developer is the tendency to say yes to everything.


Besides that, you're endangering the contractness of your contract if the other party cannot negotiate any of its terms, and indicates any confusion over just what it is he or she may be agreeing to--especially if they express their confusion in a document that can later be produced in court.

If I were to sign that "contract", I would certainly send the other party a written "signing statement" that interprets all possibly ambiguous clauses in my favor, and mentions that I received no valuable consideration for signing it. If you can't tell me what the contract means, I'll tell you what I thought it meant, and that will be what you can enforce. If you won't pay a lawyer to answer my questions before the fact, you can certainly pay one to determine the implications of my letter for you after the fact.

If I were a judge (and I'm not even a lawyer, but I can still role-play), refusing to even answer questions about the contract demonstrates a lack of equity, and I'd take that as potential grounds to dismiss any claims against the person who asked them, that may have been based upon the document they signed, which they were completely unable to negotiate, and likely received no valuable consideration for. If someone asks, "does this mean you can claim ownership over X?", you don't answer definitively, and then you later claim in court that you own X, that's bullshit, pure and simple. If the other party did not understand that to be the case at the time they signed, it is unenforceable.

If I were the defendant, I think I would also try to paint that refusal as an unwillingness to pay for some professional legal counsel at an appropriate time, rather than asking a judge to clean up their mess long after the fact. Everyone hates it when they get snubbed by someone, and then that person later comes asking for a favor. Referring legal questions to legal counsel is simply a cost of doing business. If you can't pay that cost, and try to shift it to the public legal system, how do you justify the rest of your business?


With respect, this advice is tremendously dangerous. The existence of a helpful theory of the case does not provide you with the protections you seem to believe it does.


With respect, it was not advice, as I am not a lawyer. It is my opinion.

If the entire legal profession chooses to hold a different opinion, and enforces it upon one another via their cartel, that is their prerogative. It will not affect my opinions upon what I would consider to be fair or just. Sharing my opinion may well put you on the losing side of a lawsuit, but I don't judge my value as a person according to my victories and defeats in court, and neither should anyone else.

My advice would simply be to not do business with Gigster--not as an employee, and not as a customer. They have at least one asshole in their upper management, and it only takes one to ruin a company. And further, I would advise re-examining one's previous opinions on collective bargaining organizations. If software professionals had a real labor cartel, it could blacklist companies that try stuff like this.


I doubt you have ill intentions in mind. The idea that one's personal conception of 'fair' and 'just' is sufficient to espouse how the justice system should work is common, but often misleading, as it is in this case.

Your statement on consideration, for instance, is incorrect. As is the leading statement in the post I replied to. Neither of those were constructed as statements of opinion.

In any event, I hope that readers recognize that there is a lot of misinformation in this thread and seek out proper experienced counsel to provide accurate answers to their questions.


Please do not equate the current legal system with a justice system. The system has to be based on law, and not justice, because everyone may have a different opinion on what is just and fair.

The courts system may seek out justice whenever it is possible to do so, but in my anecdotal experience, and in my exposure from [likely biased] sources, it declines to make the attempt, and seeks out simple expedience instead.

In cases where a jury may be employed to decide the outcome, the public opinion on how justice should work is relevant. If you are ever offered a potentially abusive contract, by all means consult a lawyer if you intend to proceed with it. But if you're ever on a jury hearing a contract dispute case, for the love of justice, please refuse to enforce a fundamentally unfair contract, where the party that drafted it refused to negotiate--or even explain--any of its terms.


> mentions that I received no valuable consideration for signing it

Them hiring you counts as consideration.


Did I get a retainer or a signing bonus?

I have been an "at will" employee for too long to believe that acquiring that status with anyone is worth anything at all. I was once "hired" by TekSystems in Madison, Wisconsin, to work at American Family Insurance. I filled out all the paperwork, got the coffee mug and pen, and was ready to go. Then, the Sunday evening before going to work, I got a call.... Don't bother showing up tomorrow.

So the next day, instead of starting a new job, I called up my American Family Insurance agent and cancelled my policies. That wasn't even the first time that I was "hired" by a company and then never actually got any work assignments or pay from them.

"Hiring" doesn't mean jack squat. It just means that the company has decided that it may, in the future, offer you a work assignment without requiring additional contract negotiations, pay you for it, and then report your tax info on a W-2 instead of a 1099. The essential relationship is the exchange of labor for pay. Anything I can do as an employee, I can also do as an independent contractor, and any "employment benefit" can be exchanged for an adjustment in the contract rate. So what is the "hiring" part worth? $0.

It is the height of arrogance to think that being able to say "I am an employee at Company X" is worth more than one square of low-grade single-ply toilet paper. And it is the height of stupidity to claim that you have to be an employee to exchange labor for cash.


Yeah, but there are thousands of devs who say yes to gigster. That's enough to make money.


How do you know? Gigster has raised $10MM+. For a business that actually drives revenue (as opposed to Random Social iOS App), they have quite a long runway even if they lose a few thousand dollars per project.


>If anything, developers who ask questions are the ones you want most. One of the worst traits in a developer is the tendency to say yes to everything.

I didn't say that. I said that I disagree with the way he framed his questions.


Perhaps I'm missing something. Could you explain how the way he framed his questions was disagreeable to you? From my reading they were perfectly reasonable.


>So gigster can do something really awful and I can't seek damages?

The implication made here is that the writer believes that gigster is going to "do something awful".

The over all tone of the writing is offensive rather than defensive. In other words, the email is not written like he wants questions answered, but rather that he'd like to jump to conclusions.

The responses to his inquiries leave much to be desired as well.


> The implication made here is that the writer believes that gigster is going to "do something awful".

That's a completely bullshit attack and putting words into his mouth. Gigster has the potentional to possibly to do something awful in the future due to being a company made of different people, with there being no guarantee that the people you're talking to one day are still there the next. And trust is only possible between mutual human beings, not between one human and an amorphous ever-changing conglomerate of humans.


I'm not putting words in his mouth. He postured his question to be rhetorical. It's not even really a question at all. It doesn't seek clarification. It seeks a specific response: to get that person to admit to something they might not feel is true (that the company is awful or can do awful things). It's not nice and it's not an appropriate way to attempt to negotiate a contract.

He made things into a me vs you situation when. Had he formed his objections, those two individuals responding to his inquiries probably would have made an actual effort to resolve the issues.


Say that we're doing business and I ask you to sign a piece of paper that says that you promise not to tell the police if I burn your house down. Obviously, you think this is pretty ridiculous (and concerning), so you ask in disbelief "wait, so if you burn my house down I can't even tell the police???"

My response to you: "You're being overly aggressive with your attacks. That's not nice. You could have asked a question if you had one, but you're not even asking me a question, this is just an aggressive rethorical question. It's clear that you don't even want clarification. That's not nice and it's not an appropriate way to negotiate a contract"

Would that make any sense to you?


The company can do awful things.

This is not a simple fact. It is a truth.

> He made things into a me vs you situation

No. They did. By not including the mirror of that clause indemnifying him against them, the contract was the first to state "you could do awful things", so they have no standing whatsoever to complain about anything.


How many times do I have to repeat myself on this point? I'm not refuting that the company could do awful things. I'm explaining that if you're an ass hole to the person who can change it and make sure it stays changed for everyone in the future, it's not going to happen.


If you restricted yourself to saying it is tactically unsound, and drop every other thing you're trying to say, i'd be able to join that position.

Also note: If the company opens with an attack, and when called upon it doesn't apologize and fix, then that points to maaaaaaany other problems in the company and getting it fixed is a minor priority. It is in fact only a proxy towards figuring out if the company as it is, is deserving of any kind of trust.

e: I'd also like to point you towards this: http://stimmyabby.tumblr.com/post/115216522824/sometimes-peo...

""

Sometimes people use “respect” to mean “treating someone like a person” and sometimes they use “respect” to mean “treating someone like an authority”

and sometimes people who are used to being treated like an authority say “if you won’t respect me I won’t respect you” and they mean “if you won’t treat me like an authority I won’t treat you like a person”

and they think they’re being fair but they aren’t, and it’s not okay.

""


In the short history of the "gig economy" many companies have screwed over their "gigers" many many times. It's not theoretical.


What he wrote was a statement of fact, not of opinion. Gigster can in fact do something really awful and there is no recourse. In any contract negotiation, sometimes you need to be clear what the problem is. If you, as a party to a contract, indeed feel like there is zero chance that other party will do anything to injure you, will keep to their promises, and has your best interests at heart, what is the point of the contract in the first place?


There is an appropriate way to be clear on what the problem is and an inappropriate way to be clear on what the problem is. My initial point is that he did not raise his objections in an appropriate way.

I completely understand why he objected and I would have objected as well, but I would have done so in a more appropriate way.


Why is there any onus on him to conduct himself in any kind of appropiate manner if the contract sent to him was in turn wildly appropiate (and not even accompanied by a polite set of words)?


There isn't. He didn't have to respond at all. However, he expressed, through his language, an unwillingness to negotiate the contract. That's why he ended up not negotiating the contract.

It's also why when people address me or my employer the way he did, I just don't engage at all.


Oh, so not only would you be impolite enough to send such a contract, when questioned on it you would also be so embarrassingly impolite to not even answer that you stand by your previous insult. Gotcha.


(1) it's possible that they didn't know the language could be used to hurt someone in that way. You won't give them the benefit of the doubt and instead would rather give that benefit to the person who was actually impolite.

(2) Again, as I said before, I don't agree with those terms. That doesn't mean I'd be an ass hole about it. To my benefit, I'd politely negotiate and have a much higher likelihood of negotiating the contract to my liking.

(3) If someone posed the same concerns to me in a polite and professional manner, I would go out of my way to correct the contract (hey boss person, this contract might be bad for developers!). On the other hand, if someone is an ass hole, they're going to an "ass hole" response.

Try it. Try being polite in a situation where you'd like to be an ass hole. You're going to be surprised at the end result.

Edit: wording


So, what wording would you have used?


> The implication made here is that the writer believes that gigster is going to "do something awful".

In what other context does it make sense to talk about the right to sue someone other than "doing something awful"? These are not the rules for the office's Secret Santa, this is a legal contract which details what would happen precisely if either party "does something awful"

People don't sue each other because they think they are doing wonderful things, they sue them when they think they've done "something awful".


How should he have asked that question?


> It raises the "I'm going to be a handful" alarm.

That's how you select people who either don't bother reading contracts or too afraid to question a company policy in fear of not getting a job.

Both behaviors are not what you would expect from a good and self-respecting developer.


If you think anyone that wants to negotiate a contract as a "handful" you are the problem.

Contracts are negotiations, if you are unwilling to negotiate your side of the contract YOU are the handful... and probably worth not working with.


How would you have framed the questions? The seem reasonable to me.


"Hi, I am in receipt of the contractor agreement.

Can developers negotiate the terms of this contract? I was concerned about some of the terms and how they'd affect my other projects."


[flagged]


That's very morally correct of you. Personally, I'd like respect to be on both sides of the relationship. I would rather not engage in a relationship (business or otherwise) where there is a high likelihood that someone will use psychological warfare in lieu of punctuated, professional, respectful language.


Respect for both sides is good and all, but if your opening shot is a contract like that, then at best you lack the basic respect of reading the contracts you send out, or more likely, have no respect whatsoever for anyone in the first place.

Given that, OP's email was exceeding any levels of respect merited by the messages sent to him.


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