Here's my suggestion. When you receive the document, read it and see if there's a noncompete clause. If so, you're going to want to send a redlined version back to them, changing the noncompete duration from "during and for 2 years following employment at the company" (or whatever they gave you) to "for the duration of employment at the company." By doing so, you show your willingness not to do any kind of work for a competitor while employed, while very clearly pointing out that you do have the right to get a new job. It may be important not to offend the person who wrote up the agreement and included something so ridiculous, so the minor nature of your modification will allow them to save face.
In the end, most employers won't bother to argue the second point, and the ones that do are probably shadily taking advantage of you in other ways.
Additional note: in California and several other states, these clauses are not legally enforceable anyway, and you should mention that when you give them the "fixed" agreement.
I've tried that cute "strike out the stuff in your employment agreement that you don't agree to" move, and in ALL cases, received a stern note from the corporate legal department a few days later basically saying "Sign it unmodified or GTFO." I don't know who all you Captains Of Industry are who have the power to negotiate these things, but I've found employees basically have no ability to change them.
Admittedly I'm on the upper end of the experience scale, but I think there's a lot more wiggle room than most people realize. Also, this is a pretty decent litmus test for an organization - I would avoid companies run by their legal departments.
Hold on, everyone! My parent(^) said something simple, yet it is powerful. I don't believe s/he realized they were providing such insightful information, but the little gem that makes a huge difference is in that short quote.
While many companies may not be flexible with their contracts, I love your approach. Surely the odds of success must improve - if only slightly - by simply pointing out undesirable clauses and requesting that they modify and reissue the contract to accommodate, rather than striking it out in red ink yourself and shoving it back in their faces as an ultimatum.
The former tactic de-escalates the issue to being a reasonable request from a respectful person, while the latter comes across as coming from an immovably stubborn personality who may bring a habit of causing drama into the company. Better to politely identify how the employer can effect a positive difference on your end, rather than railing against the company's policies with your demands before you've even been hired. "My way or the highway" doesn't sound very amiable.
How often do companies reject red-inked contracts, not because they are unwilling to amend the contract, but because their intuition has triggered them into avoiding your coarse methods of getting what you want? Seriously, this is quite eye-opening. You've made me rethink my negotiation phase. I will be unapologetically thieving this diplomatic approach for my personal use in the future. Thank you!
In most jurisdictions outside USA, unlimited non-compete and indemnification clauses are not enforceable anyway. Here in Brazil there are special "labor" courts that are very favorable to the employee - most contractors here will countersue in a labor court if the client try to enforce this kind of clause.
It's better to politely request that the "undesirable" (ie: illegal) clauses be removed from the contract, rather than using red ink on the contract you were sent and submitting it as an ultimatum. Either way, you wouldn't work for them unless the changes are made. The result is the same; it's all about how you approach the matter - namely, with diplomatic tact. You give the company a chance to amend the contract in your favour on their end, rather than attempting - and possibly failing - to force their hand with a revised contract on your end.
You might be in a region where such clauses are not enforceable, but if you say "hell no that's illegal!", they'll trash your résumé and hire someone else who doesn't make such a fuss. The person who winds up being hired was just a "better match" and the "position was filled". You could always sign a contract with "unenforceable" clauses without complaining, and hope the law ultimately agrees with you... but do you really want to take the risk of falling on the wrong side of the law?
Put it this way: if you strike out the contract with red ink, here is what the employer sees: "Fuck you, you can't fucking give me fucking clauses like that. It's fucking illegal, so I have fucking stricken out that fucking bullshit clause 2.1, and you had better fucking accept me as a fucking employee anyway, you fucking pieces of fucking shit! Accept the fucking contract I have sent you with fucking red ink, and fucking hire me already!".
Versus: "Section 2.1 would prevent me from seeking employment upon leaving your company. That clause is not legally enforceable, so it would be better for both of us that I not sign this. I will sign a contract with provisions that I will not poach your clients or work for a direct competitor in your field for a period of X time. If you could please revise the contract, I will sign it and you will have me as your newest employee!"
So what if you calmly request these changes be made, and the company refuses to make the amendments to your contract? Of course you refuse to work for them. Maybe even sue for their illegal practices if you can afford the legal fees. The idea is not to accept unacceptable contractual terms. The point is to allow the company to believe they are accommodating your polite requests, rather than you having made non-negotiable demands as an ultimatum. It's a mind game that gives the illusion that the company is is control, while you hold all the cards.
The end result is the same. Either you will accept the contract or you won't. You're just being diplomatic, attempting to elicit a reaction from the employer that is in your favour, rather than making the scenario a one-sided "my way or the highway". Let the company believe they are obliging you instead of crumbling under pressure.
Yet what does an employer think if a candidate indicates that they have involved their own lawyer during contract negotiations? Perhaps it's a normal occurrence in major centres (ie: Silicon Valley), or maybe even across the US. I have never heard of a single one of my 1000+ peers over 15 years of experience having done so in my country (Canada).
The very act of engaging a lawyer to read through one's employment contract here would be seen as an aggressive attack against the "integrity" of the employer's business. Red flags galore raised about how this person would be a risk to employ, should they go running to a lawyer over every little grievance.
If I had a lawyer make amendments to my contract and sign off on it, and slipped to my prospective employer that this act had taken place, I'm quite sure my résumé would hit the bottom of the recycling bin within seconds of my name being added to a blacklist of "never communicate with this person ever again; do not reply to their emails, hang up the phone the moment they give their name, call security if they show up at the front desk, etc.". I would be unemployable if I even mentioned the word "lawyer". I suspect cultural differences, with the US being desensitized to the presence of lawyers in an abundance of everyday situations?
So, no lawyer for me. I much prefer the idea of requesting that the company amend the contract themselves to accommodate me, rather than red-inking it myself. Maybe Canadians really are too polite? ;)
tldr; In Canada at least, red-inking your contract on your own has a chance to succeed. But involving a lawyer would make employers avoid you as a high-risk hire.
In a big company the manager wanting to hire you might not have the power to overrule the legal department. In a smaller company however you might get hired by the CTO or CEO himself, the contract has been written by a contractor lawyer and if we wants you he'll change the terms.
I just explained my case logically, respectfully and directly (face to face) to my line manager. My case was:
- Its understood that I will not work a second job. Though I will volunteer for some charity.
- Considering my domain expertise, I am more likely to get a job in a similar domain. If my future employer demands me to implement the same tech as my pervious employer, its a red flag that this company is clueless and will sink soon. If I volunteer the details of my previous companies operations, it just means that I am untrustworthy and I will not be trusted in the new company. So sharing details of my previous job is a bad idea.
The 4th company manager was not even willing to discuss with me about my agreement and wanted me to go to the legal dept directly. That was clear sign that this was a very bureaucratic and not suited for me.
Of course, I have only worked in small to medium sized company and they was no secret algorithms worth in the millions or billions involved. That I am sure is a different case, like the current Google vs Uber over the tech stolen by Otto from Waymo.
You can negotiate successfully with the former, but not the latter.
Of course I have the advantage of living in a place where there's plenty of work. If jobs are scarce where you live, that significantly changes the labour market.
Much harder to do this in a bureaucratic company that has been around forever since they tend to be pretty inflexible on everything except salary/benefits.
E.g. "I'm very interested in the position we discussed, but would like to discuss clauses X, Y, and Z. These pose a problem for me for reasons. If this is something you could be flexible on, I'd love to see what we can agree on! If these aren't clauses that can be changed, I feel that salary +A and benefits +B would be more in line with what you're asking for."
If phrased like that, you're putting the "choice" back in their hands, but making it clear just how much these things are worth to you.
They may say "Neither of those options works for us," but the difference is that they're making the decision to torpedo your hiring over one of their own clauses. Imo, it's much more difficult to say "These clauses are worth A & B" than it is to say "These clauses are super important."
When contracts are redlined in any way, even relatively small companies have procedures in place to require review by the legal counsel. As soon as you introduce lawyers, the delays kick in and nobody is happy.
A company is paying me to work for them, they're not paying to own me. When I'm off the clock, my time is my own, up to and including doing paid work for anyone else I want.
I'd make an exception if they increased my pay accordingly. But considering that they're asking for 4.2x more of my time than usual, they'd better be paying me at least 4.2x a normal full-time salary.
I do have a little experience with making changes to contracts that the other party doesn't want to change, and to that end I'd like to add two more things. First, it's likely they'll use the phrase "standard contract" and say that it just can't be changed. Second, if you've gotten that far, it's quite likely they'll change your minds if you stick to your guns. It's tempting to cave in when they say "sorry, we can't accept changes," but don't.
If nothing else, it is very important that you keep the right to move up and out to a new job. That's the point you should focus on. In a realistic full-time first job, you're not going to work for a competitor at the same time, so it is fine to tell them you won't if that helps the two sides reach agreement.
Good point about not taking "this is the standard agreement" for an answer. That's not good enough. Say you understand that it's a boilerplate legal document, and you'd be more than happy to give them a couple days to double-check your proposed change with their boss, counsel, or whoever they need to. Again, be firm while giving them an avenue to save face, and wait for them to call back with a sudden change of heart.
I'll sign whatever illegal documents you want me to sign, knowning that they don't matter.
You might respond by saying something like "what if they go after you anyway, even though it is unenforceable.".
But the problem is that they could just do that anyway, illegal contract or not.
The difference is that with an illegal contract, your future employer might actually believe it's more headache than it's worth to fight. I would err on the side of casually striking it out of the employment contract, simply saying "this part of the standard document doesn't apply in our state" etc.
On the other hand, a court can't really order you to work for the company, so even if by some miracle they were successful, it'd come down to a matter of damages, and those would be difficult to prove even if you went to work for a direct competitor.
By the way, the Silicon Valley HBO show can be remarkably accurate on things. It's rare that a TV show gets things like this right, where people in the business don't.
I just happen to know lots of attorneys in the space. I am not an attorney or giving legal advice. Talk to your attorney for that.
At least one of the reasons for a non-compete clause is to make sure you're not doing stuff on the clock for your employer, and then getting double-paid by a competitor for essentially the same end result but without the competitor having to pay for the whole process of getting that result. Like, if they're paying you to spend 40 hours a week learning about the key problems in their industry and designing and implementing solutions, and then a competitor hires you for 10 hours a week to re-implement those solutions (not paying for the learning/designing phases). So the competitor is getting the benefit of work you're doing that in some sense should belong to your main employer.
There might be something better than a non-compete clause for that sort of scenario, I just don't know what it is.
So no, a noncompete - even one that only applies to the time you are employed by the company - isn't typically necessary.
Confidentiality doesn't work that well because proving that a former employee disclosed proprietary information is very difficult.
However, the ex-employee is generally paid at full salary for the time that they're unemployed, which seems like a very fair arrangement all around.
My friend did commercial banking. He had a one year non-compete, but it was geographically scoped, and he also had multi-year contracts that protected him from layoff. They needed to release him for specific causes, buy out the contract, release his contractual obligations, or some combo.
Usually it depends on the exact new position, whether it's at a direct competitor, how senior the person was, etc.
Why is the politico-economic system called "capitalism" and not "laborism"?
You have to take pains to avoid contamination when reverse engineering a product, for example, and that doesn't even involve the original staff.
Seems that your argument could also be used to justify lifetime noncompetes. If I work for a company, gain experience, then go work for another company, they're getting the benefit of all of that experience without having to pay for the years it took to obtain it.
The value of this, of course, depends very much on the specific industry and project. It doesn't really matter if your guy who builds generic websites for your clients also builds generic websites for a competitor's clients. That doesn't materially hurt the first employer. But it can matter a lot if your guy who you are paying to develop cutting-edge algorithms is deploying those algorithms to the competitor you're trying to beat. Instead of gaining an edge worth $X per year, your company instead gains only part of that advantage because at least one competitor is cutting into it.
Suboptimal if you're working for a direct competitor. Standard conflict of interest stuff. Would you accept Donald Trump working for Russia on the night shift?
Remember, non-compete is not the same as IP clause - which says anything you create on the job (and potentially off the job) is owned by the company.
This is often a matter of serious debate. For example, in New York legislators are considered part time, so they are permitted to operate businesses or be employed while in office. This creates an appearance (at a minimum) of conflict of interest in many scenarios. Full time employees of government generally need permission by the appointing authority to do meaningful outside business.
This applies to any government employee. A janitor on government payroll generally needs permission to work for a company that cleans offices at night.
This sounds very interesting and sort of funny. Not really sure how it works on other presidential houses, but still sounds amusing since it will probably require rules and guidelines on what exactly to deduct from the president's paycheck, no? What if the president invites someone over, in a sort-of-unofficial way but not really, do you get deducted as well? or maybe not because it was "for the job" sort of?
Definitely interested to know more.
I read about this in a book called The Residence: Inside the Private World of the White House, which was decently interesting.
Like I said, it does sound reasonable but apparently it does add up. From the link:
"[Laura] Bush wrote that a bill came monthly, itemizing everything she and her family owed, including food, dry cleaning and hourly wages for waiters and cleanup crews at private parties."
"There were some costs that I was not prepared for," Bush wrote. "I was amazed by the sheer number of designer clothes that I was expected to buy, like the women before me, to meet the expectations for a first lady."
I wonder what would happen if you said "Ah, so you're stipulating that it's a contract of adhesion. I'd like that in writing, please."
Contracts of adhesion can be harder to enforce .
(IANAL, and I'm not necessarily recommending doing this, but I am curious what kind of response one would be likely to get.)
Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.
Which is when you move on to the next employer if at all possible.
A court will be much more favorable to the applicant, then, because presenting them with a contract they have little power over is something courts generally don't like, as it is unjust.
Asking the employer to write "this is a contract of adhesion" basically means "oh, you're screwing me over? Can you please write that this is a screwing-over contract on it?".
Courts uphold shrink wrap and click-to-agree contracts all the time.
(ETA:) This might not help very much, because in places where noncompetes are standard, a court would be sticking its neck out a little to rule that one is unreasonable. But maybe it would help a little, if one couldn't get the provision struck from the contract altogether, and had no reasonable alternative to accepting the job. (Again: IANAL, and I'm just speculating -- no one should take this as legal advice!)
You're right that it's fair for employers not to hire me if this is my demand. I never meant to imply otherwise. Employers can require all sorts of terrible things. Our recourse is mostly to either negotiate or put up with it.
The difference is that you didn't spend lots of money researching a better type of floor-laying and then have the flooring company come in to lay the hardwood according to your specs. If you had, you might want to protect that secret.
I have little or no sympathy for businesses which insist on restricting freedom outside of those hours for which it pays me wage.
The problem is conflict of interest, I think working for direct competitor is very unethical (of course direct competitor is sometimes vague term, but that's another discussion).
The software industry is big enough that you can definitely find secondary employment at a company that isn't direct competitor. That you want to apparently game multiple parties for your own gain seems like a pretty terrible thing from the employer side of the fence.
Once the company I work for had an employee from a direct competitor apply for a job with us immediately after quitting. They were pretty forthcoming with offering us intel on the competitor, presumably within their contract. We still turned them down because if someone has that little respect for a working relationship with their previous employer you can be sure that they will do the same to you.
People here often like to paint the picture of the people versus evil corporations. In reality, a job is something where you should have mutual respect between employees and employers. To me and many others, this is part of being a professional.
This is evident; the employer pays for the upkeep and maintenance of a machine, and in the same way he pays for the upkeep and maintenance of the worker in the form of a wage. The worker is a self-fixing machine which sells a commodity which is able to not only transfer but create value.
"The only difference as compared with the old, outspoken slavery is this, that the worker of today seems to be free because he is not sold once for all, but piecemeal by the day, the week, the year, and because no one owner sells him to another, but he is forced to sell himself in this way instead, being the slave of no particular person, but of the whole property-holding class." (Engels)
"The slave frees himself when, of all the relations of private property, he abolishes only the relation of slavery and thereby becomes a proletarian; the proletarian can free himself only by abolishing private property in general."
The idea that you can "quit at any time" is a farce; you must then find employment under someone else in order to survive, or manage to amass sufficient capital, something which is not an option for most people, especially with family. An extreme example of this logic utterly failing is in those developing nations with sweatshops.
> An extreme example of this logic utterly failing is in those developing nations with sweatshops
Poverty means making hard choices. If your choices are :
1. Starve to death
2. Work in a sweatshop
Most people would pick 'Work in a sweatshop'. Nobody who has the choice to work in a sweatshop or be a doctor is working in a sweatshop
Then it's not a choice. Therefore there can be no consent, you are not made to work by force but by threat of starvation or homelessness, it is an oppressive situation even if these people don't have literal chains at their feet.
It is not a consensual relationship, and at the very least it is exploitative, just as a prostitute who must sell herself on the street to make ends meet is being exploited - not by any particular person, but by the system perpetuated by the individuals who force her to sell herself in this way. When the only alternative is starving, I'm afraid to say that it's not consent when someone agrees not to starve.
In slavery the owner is creating the conditions of oppression. In free market the employer is paying the wages which could potentially lift the employee out of poverty
Equating all hardships to slavery is pure folly
I agree, but they don't have to work for someone else who extracts surplus. They can organise themselves and work themselves, voluntarily. They then own the products they make and decide how and if to distribute them.
>In free market the employer is paying the wages which could potentially lift the employee out of poverty
In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter.
The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.
You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports.
This surplus is profit, which is the motivation for setting up businesses. Take that away and there is no good reason for taking the risk
> They can organise themselves and work themselves, voluntarily.
This is already allowed in a capitalist society
> They then own the products they make and decide how and if to distribute them
Disagree. The labourers own their labour and the owners own the product
> In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter
Again, in slavery you do not own your labour. So the surplus of your wages ( or time ) cannot be invested, or used to create capital
> The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.
What does this even mean ?
> You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports
Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"
To me, it looks like the system you are proposing would be very much like slavery
I'm not arguing for businesses, I'm arguing for the destruction of capitalism. I hope that businesses currently around fail.
>This is already allowed in a capitalist society
Any organisation which attempts to do so will fail very quickly, due to the fact that (i) workers must be kept employed, not disposed of when machinery that does a better job becomes available (ii) workers would have to be paid much higher than in those firms that do not operate as co-operatives. These two facts mean that such an organisation cannot compete. A good analysis is here: https://www.youtube.com/watch?v=yAxajtiRatg
It is not a viable option within capitalism to provide for the labour force in the interests of the labour force. Also, most people cannot be employed in a co-operative, so the problem still exists. As long as the problem exists for even one person, I view that as reason to fix the system.
>The labourers own their labour and the owners own the product
Wrong. Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.
>What does this even mean ?
Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.
>Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"
Why is work unenviable? And within a Socialist society, the workers own what they produce by the end of the production process. They can then decide democratically how to distribute the products that they make among themselves, or choose to not distribute them at all. If you are trying to say that humans just sit around all day and do nothing, this is incorrect; in any system, one must work to survive. In a Socialist system, you are rewarded according to your labour, because you own what you make in a joint production process.
There are various motivations for wanting to work, too; the desire for credit, wanting to provide for your family and children, wanting to improve the conditions of the society you live in, the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc.
It will be up to an individual to decide why he wishes to work, but in no circumstance will he forced to sell his labour-power for someone to make money from his labour without doing an hour of labour themselves.
If it is true that communist societies are superior they should not be bombable by capitalist societies. But if you are claiming that capitalist societies are inherently more unjust to favor people with capital, communist socieities as inherently more unjust in a way that favor people with political power
> Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.
This is pure nonsense on many levels.
What about the value derived from the risk taken by the enterpreneur ? What about the value derived from the work done by the enterpreneur ?
Also value is subjective. A hungry person will pay more for a piece of bread than a satiatated human being. This again is a source of profit ( and no, its not oppressive if there is competition to establish a fair price )
> Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.
The difference, again, is that the wages paid can be used to climb out of this position. This option is not available in slavery. Employee-Employer relationship is mutually beneficial, not oppressive
> Why is work unenviable?
Do you work for Google ?
> There are various motivations for wanting to work, too; the desire for credit,
> wanting to improve the conditions of the society you live in
> the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc
This does not ensure that the important and necessary work will get done. Also it does not ensure that the work which contributes maximum to the society is preferred over other useless work. I prefer to live in a world where important work gets priority even if it means I have to perform unenviable tasks for limited periods of time
The fact the entrepreneur was able to take a risk at all is remarkable by itself: without starting capital (often inherited), you simply cannot take any risk to begin with.
Want to reward risk-taking? Think how this very thinking perpetuates (perhaps even increases) inequality.
> What about the value derived from the work done by the enterpreneur ?
That work has value and should be factored in the final value of the products, then rewarded.
Make no mistake, slavery also requires consent: the slave can always kill himself at the very least.
Coercion (or lack thereof) is immaterial. And even if it's not, we could argue that there is a coercion of sorts: how come the employers don't offer better choices? Are they even talking to the government to help them offer better choices? Or do they just want to maximise profits, using whatever means necessary? Sure, their responsibility is much more diffuse and less clear cut than that of a slaver who would personally kill unwilling slaves. But from the point of view of the slave/employee, the result is the same: servitude or death.
Note that the sweatshop situation is dire enough that some people do chose death over the sweat shop. Enough of them that some shops have nets around them to prevent their employees from jumping off.
Rape is a thing, so I don't think this is a very good moral standard. Informed, active assent is the usual standard.
Many people can't. I mean, they can, but they can't afford it, unless they're willing to risk homelessness.
Funny how that sentiment disappears completely when the topic of employers wanting your total productive output comes up.
Now, you can argue that it's not your employer's business what you do off the clock, but it at least provides a way to protect yourself from falling foul of the agreement and having the company later claim ownership of your work. The key though is to ensure that you don't do any personal work on a company laptop - I believe once you do that all bets are off.
As an employee, every company I've ever worked for has given me one. Few have been negotiable, but pretty much all have openly stated/agreed they weren't enforceable in CA when I raised concerns.
True. But said company may not want your experience, let alone anything you learn about their business, to benefit competitors. Indeed, they may consider your training with them to be an investment, which gives them rights about what you do with it.
The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.
That said, these things are often malleable, and that's a good thing to be aware of, but grandstanding on "4.2x salary" just makes you look entitled.
Wow. So your point is that, because you like doing non-work on your own time, everybody should be prohibited from doing work?
> The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.
Holy shit, seriously? I seriously have to ask my employer permission to have a hobby because the hobby might be lucrative? I have a hard time believing you actually hold these opinions.
My employer isn't the one who made my hobby "a privilege". My hobby might be a privilege, but I'm sure as hell not going to ask my employer whether they'll allow me to practice it.
It's not a privilege, by the way, because it's a hobby. At most, the "privilege" is the fact that people will pay for it, but it's the same for any person who actually enjoys the field they work in.
"Full time" is just shorthand for "40 hours per week." Don't read things into it that aren't there.
Who in the software industry still gets offers like that? Everyone I know gets a DocuSign PDF they sign digitally. There's no opportunity to alter the document.
There is basically no non-confrontational way to do this. If a software developer has a competing offer, sure, leverage it. Otherwise, I think the only realistic remedy is a state-wide or nation-wide legal protection.
"In rare cases where a person still hesitated to sign his or her name, I might add 'The legal people won't approve of any changes'. Keep in mind that the legal people didn't even know they wouldn't approve of any changes. Nevertheless, the phrase worked like a charm, since 'legal people' projects, on a wide screen, a powerful image of legitimacy. One theoretically doesn't fool around with the legal people."
Part of the magic of contracts is that everyone seems to believe they are magic. But a contract is simply an agreement between two parts. You are more than welcome to suggest changes to it.
As for the PDF, just because the company makes it harder for you to change its terms it doesn't mean that you can't still do it. For an extreme case, this guy scanned a credit card contract, modified its terms, and send the modified application back. He then sued the bank, and won (they settled during a later appeal).
Only if you're very inexperienced will this be tricky, once you're senior nobody bats an eye when I ask for things to be changed in the contract.
A contract is part of communicating how we will work together. Demonstrate that you're competent by clearly communicating the changes you want and why you want them and if they react back poorly then you dodged a major bullet, since they'll also communicate poorly in day to day functions.
I'm not saying you'll always get what you want, but there should never be anger, and just because you're sent a signable document via DocuSign doesn't mean you have to sign that version of it.
I'm a contractor, which makes it much easier to turn down (how the hell could I possibly keep working with a non-compete?), but the OP is correct in that almost everything is a PDF nowadays. You have to bitch and scream to get a contract changed. Most naive workers won't understand that there's a negotiation process; they simply think that the contract represents the job.
> Hey Frank, just read through the non-compete and I have a few small changes. 1. Since we're only working on a proto-type for a classifier for sorting documents can we amend the non-compete to specifically mention that domain? I don't want to limit my options unnecessarily but I appreciate you wanting to stop me from turning around and selling this stuff to Microsoft once you're done. 2. The term is unlimited right now, which I'm not even sure if that can stand up in court. Let's cap it at 2 years from project completion or my leaving the project. If it's easier for you to just agree to these changes over email just reply by saying "Sure Zach, these changes are completely reasonable." and I'll sign and add "with agreed changes" next to my signature.
That will 100% stand up in court, and really if they say "no" to it then you say "no" to the opportunity, but I've never not been able to get to an agreement with someone. Good help is hard to find, and a little charisma goes a long way when negotiating.
Your example sounds perfectly fine! But if you've spent decades building "3D animation engines for games" at various companies that do so - and that's basically your career now -
you won't be helped much by being specific about what type of work is considered competition. YMMV, so concede only in ways that leave your options open.
For my current gig as a linux sysadmin I was hired a couple of years ago, and handed a standard employee contract. There was a clause in there that I agreed not to install free software on my work computer. The clause was just there for tech naives who might install any old crap, but it was funny for a linux professional. There was zero trouble amending the 'standard contract' to get rid of that clause. :)
In any case, you can bet your booties that the higher up the food chain you go, the less people get a 'standard' contract and the more it's tailored individually to them.
But when you're just getting a start and think that "this contract is life or death"? It's a non-starter, you would never think of negotiating it.
It makes more sense for them to simply be illegal than negotiable for that very reason.
I've never had to bitch or scream. Just say "Oh and by the way, I have a couple of changes I need made to the contract".
Nobody's ever made me feel unreasonable for asking that, not even when I was fresh out of college.
That way they feel like they've been heard and their concerns are taken into account which makes them feel better when/if you formulate a new clause.
Sending back a printed list of demands could be interpreted as unnecessarily confrontational.
This is a your-mileage-may-vary thing and there is no easy answer for all cases.
You don't have to be willing to accept it, just be willing to hear their side of the story.
Print out the PDF, pencil in your changes, and then scan the document.
Thats what me and my school would do for actual contracts that were made for performing artist contracts, ect.
What's so immutable about a PDF? I'm thinking about my most recent job where when the contract arrived in my inbox it had a salary 10% lower than I expected. I was disappointed and anxious about how to continue. It was a good job, but I didn't want to take a pay cut. I sent off a quick email clarify it, unsure how it was received. An hour later I got a short apology and a new contract.
Asking is free. It's as they say - you never know if you never go. If they still resist, then you've done the hardest part of starting the conversation, and it's up to you to see if you want to continue with the negotiations.
If they're cool with it, sign the clean employment agreement together on the spot. Make copies and you're done.
This is assertive. But it's not "confrontational." And if your employer withdraws the offer because of it, it's a huge red flag and you're lucky. But I've never seen an offer revoked for asking questions.
If you have more leverage, then you can be more "confrontational." You might want to mark up the agreement (or have a lawyer do it) and send back. That may seem a bit more forward, but you can certainly do it.
Please don't think you can't question what your employer puts in front of you. Maybe they won't revise the agreement for you, but it's worth trying if you have concerns.
Usually, this involves removing clauses about not having other employment or side work, which are a non-starter for me. One employer added an appendix full of "exceptions", saying "all side work is allowed, not further authorization required."
Be reasonable, and you will likely get most of what you want. If they are unreasonable, you're probably better off working somewhere else.
If you're not ready for the company to walk away, be careful with this approach.
It's not very easy for most people to find a new job.
Imagine you are getting your dream job at Amazon.com and someone is telling you to negotiate or discuss this part. Large companies are much less willing to accept anything like this.
However, in your defense, I am pretty sure that negotiating in itself doesn't cause any harm to your opportunity to be hired.
In a world where employees have even an ounce of power, this might change, but we don't live in that world. Even in the software world, what new hire has any power whatsoever to negotiate their employment agreement? You're at your weakest: You have no track record yet at the company, few to no allies, and there is a line of other applicants out the door who would be thrilled to have your job offer. From the company's point of view, why should they bother with you if you're already being difficult?
Are they gonna tell you over some barbeque, "Hey by the way Bill you know and I know that we can't TECHNICALLY enforce the clause preventing you from working in this industry for two years after leaving your position with us but we both know that it was very shitty of you to take a job in this same sector."
Who's going to say that with a straight face? Is there a moral aspect?
If there's no moral aspect, why do you have to revise unenforceable clauses? ("let sleeping dogs lie.")
I wanted to make sure the proverb I said was what I meant, this is the dictionary definition that came up: "avoid interfering in a situation that is currently causing no problems but may well do so as a result of such interference."
Doesn't that describe redlining unenforceable clauses you don't like?
EDIT: Thanks for the replies guys. I was specifically asking about California. I think the replies give good reasons why you should redline unenforceable clauses (and this comment has been downvoted, but I'm keeping it for context for others reading the thread.)
Also, they generally don't track you down at a barbecue. They'll try to tell the company you are jumping ship to that your employment there would be illegal, as TSG Finishing did. The future employer will then have to send back strongly worded letters clarifying California employment law. Frankly, you want to avoid that whole mess in advance.
The law is an imperfect reflection of morals, not the other way around. Most people's sense of morality is not based on the law.
It's possible for perfectly reasonable people to think non-competes are not "absurd", regardless of California employment law.
The Employee shall throughout the duration of this employment contract and for a period of one year after termination thereof, not be engaged or involved in any manner, directly or indirectly, whether on the account of the Employee or on the account of third parties, in any enterprise which conducts activities in a field similar to or otherwise competing with that of [COMPANY NAME] and/or its affiliates, nor act, in any manner whatsoever, directly or indirectly, whether on his own behalf or for third parties, as an intermediary in relation to such activities. This obligation applies solely to any work activities or involvement of you within the territory of Europe.
- If you can show that you are making a significant step career-wise (easy)
- If your function is different than when you started and didn't sign a new non-compete (from backend to full-stack)
- If the contract is temporary 6 months or 1 year its not valid
- If you didn't specify a fine, you need to show evidence of damage/loss of that employee leaving to a competitor (impossible?)
So just a few ways to get rid of it. Almost every (employment) attorney in NL will get this non-compete blown away.
My 2 cents: It costs a lot of (negative) time and if someone wants to leave just let them go. If you respect them, they will respect you. If you screwed them over and over they already copied the data the want and will still leave.
Turn the non-compete to a non-client clause (relatiebeding), way softer but ensures that they can't "steal" your clients. Because you are being generous not limiting the person to move to a better position this clause will be way harder to get rid off. Still be reasonable though :)
It requires the non competes clause to define duration, geographical scope and explanation why the interests of the employee require it.
Not sure it was altogether thrown away.
Actually there is a third reason: An employee leaves and takes proprietary tech to a competitor.
The standard answer is: Well that's what an NDA/Confidentiality clause is for so you don't need to worry about that.
Unfortunately it doesn't really work like that. You can't just purge your brain of something you've been working on for months or years. On top of that it's nearly impossible to prove that a confidentiality infringement was made unless code or hardware was straight up exported/copied and implemented.
Especially in the case where a megacorp hires away someone from a startup, the startup can't reasonably sue megacorp for this type of thing because it would cost too much and be basically a total loss.
Effectively it happens like this:
Employee 1 was implementing a novel computer vision algo for Startup X.
Megacorp approaches Employee 1 with 3x salary offer and stock.
Employee 1 leaves startup to work on a similar project for megacorp.
Startup can't ask what Employee 1 is working on because Employee 1 and Megacorp have an NDA.
Megacorp comes out with a new product that implements the algo, except it was implemented by the team Employee 1 was on which had been working on the same problem for a while and not just Employee 1 themselves.
I've seen this happen first hand, so it's not like it doesn't go on.
There are a million "reasons" why people are ok with this situation and just blame it on the startup not being competitive with salary, but increasingly that's basically impossible.
The problems are:
1) Even in those situations, does the societal value outweigh the harm to the employees who suffer under the weight of the non-compete?
2) Even if the answer to #1 is yes, is there a way to narrowly craft law that allows non-competes in that very narrow situation without the collateral damage of other employers foisting non-competes on employees in non-analogous situations?
On #2, my guess is the answer is no. We have bright-line rules for good reason - because without them, it is easy for an employer to get around them. They are a blunt instrument, but they work. A lot of labor laws are like this.
And remember, the situation you were concerned about - the small startup vs. big company situation where the startup cannot enforce its trade secret rights because of costs of enforcement - would end up being turned into an analogous situation in the employee vs. big employer context if we allowed more non-competes to be enforceable. Maybe the employee's legal position would be correct, but try going up against a big employer in a legal battle to fend off enforcement of such rights.
Maybe instead of playing around with rules around non-competes, we should be focusing on providing a greater ability for small companies to enforce IP laws? For example, better attorney-fee shifting provisions?
I think it's part of the ongoing David vs Goliath problem. My worry though is that it's last call for small companies being able to compete and grow.
Non competes aren't intrinsically shady or evil. Some companies have business models that depend very heavily on secret IP. It's just another adverse factor you have to add into the mix when evaluating a job, along with compensation, work-life balance, advancement opportunities, etc. Many non-competes are very well compensated, and limited in scope to a particular niche industry, so you could still go off and work anywhere else in tech industry where your IP cannot be used against your old employer. Signing one isn't the worst thing in the world.
Secondly, while there do exist well-compensated noncompetes for executives and other high-value employees -- and I don't think anyone here is arguing against those either -- the vast majority are not compensated at all, except that the employee gets the job in the first place.
Still, there is a little truth in what you say. But we in California think that that is a price very much worth paying in exchange for the more vibrant economy afforded by outlawing noncompetes.
- Are fairly new to the industry or are otherwise trying to act in a buyer's market for labor,
- Are being offered market-rate or lower with no extra incentives, and
- Have a potential employer trying to foist a noncompete on them for no particular business reason.
Understand the employer's business model and whether noncompete will be a sticking point for them. If it is, then the situation is very different, and you should be asking for lots of money rather than the clause's removal.
If they're not paying you while you're not allowed to work in your field, yes, they are. And unfortunately that's a lot of them. If you're being paid to sit in your backyard or do something in a another field, that's a different story.
In most contracts that are for companies that are across states, you'll see this clause marked with a "Not applicable in California."
I can't say if you're right or wrong about this, but personally I'm pessimistic about the claim.
The issue with requiring your employer to make it only be for the duration of the employment is many companies don't want you to learn about their customers, and methods and trade secrets and then quit to set up a business in the same area . . . which is reasonable. Non compete clauses are allowed in most jurisdiction so long as they are reasonable as to duration (don't last too long after employment) and reasonable as to distance (only cover a limited geographical area)
The only reason big companies offer health insurance is because it limits employees's freedom. It would be easy for the Fortune 100 or 200 in unison agree to eliminate health care and provide a higher salaries. It would make the companies more competitive globally and it would free them from a whole lot of other nonsense, but they don't drop healthcare. The reason they don't droop healthcare is because healthcare and pre-existing conditions limit employee options and it suppresses wages. Also if there was universal healthcare it would be easier to start small companies and attract employees, those small business would be competing for employees against big companies on equal footing.
Healthcare is a racket limiting not just healthcare but freedom.
Some big companies may prefer it this way, but a lot of others with plenty of political clout (e.g. carmakers) don't. On the whole, that's not a major reason employer-provided healthcare is still afflicting us.
The fact that Healthcare is tied to employment is downright shocking to virtually all developed countries.
It really is baffling. Everybody would understand that it would be terrible if employers were the primary providers of housing, food, or transportation. But for some reason with health insurance, we not only accept but demand it.
Hey, leave me out of it. Plus, polling is misleading. There are certainly options we could settle for, like grandfather clauses and gradual phase-ins.
In fact I wouldn't be surprised if the majority of the healthcare burden in the US is from patients without employment. Medicare and Medicaid are some of the largest funds out there.
Ones employment and ones health should not be linked in anyway whatsoever, lest bad things happen.
America wants you to work. Work work work work work. Our European neighbours can save up and take a few months off every few years and not have to worry about health care. In America, we only get socialised healthcare when we're too old to work and are no longer useful to society.
Europeans hate work. Hate hate hate hate. They hate work and elect politicians who also hate work.
That major (cultural? economic? social? political?) difference between American and European attitudes towards work might explain these statistics:
American vs EU unemployment rate: 4.7% vs 8.2%
American vs EU youth unemployment rate: 9.4% vs 17.3%
American vs EU GDP per capita: $56k vs $35k
And so on.
Point being, things are only the way they are because we want them to be that way--and elect politicians who do as well.
That said, I agree with the core premise: corporate-sponsored healthcare is a lousy drag on the economy...
Some of EU members are on the same level as US (e.g. GDP per capita is $51k for Netherlands, $48k Germany), and then there are poor, post-communist countries like Romania and Bulgaria which have GDP of $20k, which brings EU average down.
Same goes for unemployment: Germany -> 3.9%, Netherlands -> 5.1%, Spain -> 18.75%
Plus, there is no such thing as "European attitude towards the work", because Europe is very diverse in that regard.
- You opt to cut your hours from 45-30 and live on less
- You take a few months vacation
- You take a year paternity leave
I know from experience that those can seem irresponsible to
For many of them, the job is very physically demanding and the body starts failing apart at age 40 (construction, health care).
People who don't want to work, don't show up in unemployment.
I just read your post and my mind boggled at a $200 premium, $6,000 deductible and something about co-pay.
I am 35 and don't even understand that last term, because I should not have to.
Healthcare should be about health, not money.
If Americans already pay more to the gov for healthcare than countries with universal healthcare, why doesn't it exist in America?
It's more complicated than that. Offering healthcare in large groups which are likely to be diverse agewise, has considerable benefits for insurers. If people have to privately insure there's a tendency to forgo insurance unless you're in higher risk of being sick. Which increases average costs. Hence the ACA non-insurance tax etc.
> Also if there was universal healthcare it would be easier to start small companies and attract employees
Yea, absolutely. I really miss that after having moved to the US from Germany.
The advantage of being at a small company is you have greater growth opportunity. The advantage of being at a big company is greater steady state benefits and salaries.
It's been shown that statistically, it makes more sense to work at a big company from the perspective of expected value. But not a very exciting way to live :)
Employment creates a 'risk pool', specifically one that people are unlikely to join just to get insurance. It is one of very few ways to mitigate the "adverse selection" problem, i. e. only old and/or sick people getting insurance, thereby raising prices, and repeat. The other way is an insurance mandate, or, if you want to cut the chase, single-payer tax-funded healthcare for all.
The purpose of insurance is to amortize the cost of unpredictable things across time and population. Group plans are just another way to select higher quality (lower cost) people for the plan. Of course this means higher than average cost for programs like medicare.
I felt morally OK with the situation...
Only, my contract did have a noncompete. But then, this is Sweden, and noncompete clauses are almost not enforceable by Swedish law. An employer can't stop an employee to take another position. To be a valid clause, an employer must offer the same payment the new position would have had whilst riding out the non-work period, and no one does that.
A strongly worded letter from my lawyer sorted it. Never heard from them again.
Not to say you necessarily did anything wrong, since I don't know anything about your situation except for your comment. But take a "typical" case similar to yours, and look at if from the employer's point of view. They give you access to stability (a salary), office/equipment, potentially training, potentially their reputation. All of which helps you get a client and focus solely on the client.
If, after all their investment, you can walk off with the client, depriving them of the income that they would've earned, then that makes it less likely for future employers to make these kinds of investments in people.
(Again, this is the generic case for non-solicitation/non-compete, your particular case could be totally different in all the ways that matter).
In this case it may make sense to pay a former employee to do nothing for one year until his knowledge of internal tech is no longer confidential because published or released.
- When you quit, tell your now former employer that you're quitting to pursue something other than what was your established industry. Your (made up) lifelong dream of starting your own microbrew brand, Macrome supply business, winery, whatever. Or looking after a sick relative, or going back to school full time, etc.
- Cut off ties with all your former coworkers, at least for the noncompete duration. If you bump into them at the grocery store and you can't get away from them, tell them about how wonderful the beer business is or how your relative is doing.
- Don't put on Facebook or Linkedin that you work for the new employer.
- For the duration of the non-compete, only those closest to you who critically need to know about your new employer, spouse, etc will know.
- Avoid publicly-facing industry related activities that tie you to your new employer for the duration of the noncompete. Giving speeches, presentations, writing article, etc.
None of these are foolproof but they are all common sense. Remember the Monty Python sketch about How To Not Be Seen.
The only thing you have to do, is when people ask you where you work, just say "I'm under NDA. Can't talk about it.".
Or keep it vague. "I am a web developer". Something like that.
No need to get rid of your friends, or hide, or anything like that.
Just simply don't talk about work, and I can assure you that nobody is going to come after you.