Protections for workers in tech are better too. Things like moonlighting and protecting your intellectual property is easier in California than most places in the states.
In most of the country, your employer can claim 100% of your intellectual output, no matter if your work was 'on your time'. If you come up with something clever on the weekend on your own computer, your employer still owns it.
(Aside, I think this is one issue that could be a motivation for unionizing tech folks.... or at least collectively bargaining.)
Fun fact: The law you are talking about (California Labor Code § 2870-2872, enacted 1979 [0]) was cloned from an earlier Minnesota law (Minnesota Statutes Annotated § 181.78, enacted 1977 [1]). Several other states have cloned this law as well (at least Delaware, Illinois, Kansas, New Jersey, North Carolina, Utah, Washington [2]). So it's not exclusive to California, though it would be nice if more states picked it up.
But without the limiting anti compete clauses like California does, it's basically toothless.
At least in NC I was informed by lawyers I hired that my employer wouldn't let me moonlight in a 500 mile radius, as while they wouldn't own the output. any software was considered "in competition".
Hmm that doesn't really make sense to me. If the software you were writing while moonlighting is competitive with your employer then it seems like the IP ownership law wouldn't cover it -- your employer could in fact claim ownership. So the non-compete doesn't matter and the outcome is the same in either CA or NC.
But I'm not a lawyer and I'm sure the lawyer you hired knows better than me.
(FWIW I think this is fair. You shouldn't be allowed to compete with your employer while still employed by them, as this creates a massive conflict of interest. Though if your employer is claiming that any and all software you write "competes" with them then that is obviously BS...)
The point being that in NC, at the time they were allowed to write non-compete clauses that functioned as any software written in a 500 mile radius was considered competing.
I worked on enterprise data storage operating systems, and I wanted to work on a personal phone application in my off hours.
Re employment: The standard move for these companies was to basically auto-file a lawsuit if you were over a certain title threshold, and below they didn't do much. All the execs I knew would take a one year "vacation" and magically start work exactly 365 days later at the new company. It didn't affect rank and file except for this moonlighting + competition combo.
Re significance of 500 miles, state courts generally ruled that was a reasonable distance for non compete at the time, and so your company's lawyers would put together the most conservative contract that was borderline.
I'm very glad to have left that employment market, it was clear why startups never seemed to start in RTP unless they came out of Universities, specifically because of these huge liabilities for any investor. It's a shame, because the area now just waits for the next globo corp to open a remote office, rather than anything starting locally.
This only seems enforceable insofar as your legal funds are less than your employers, or the supreme court continues to be a federalist controlled mafia.
> your employer can claim 100% of your intellectual output
I've dealt with this:
1. When accepting a new job, I make a list of all the side projects I had and got a signature from the company that they were my projects.
2. When starting a new side project while employed, the first thing I'd did was write up a description and get a signed buyoff from the company that it was my project.
Never had a problem. The trick is to do this stuff up front and in advance, not after-the-fact.
I've had employment agreements handed to me by HR with "here, you'll just need to sign this, and we're ready to go!", and I've taken out my pen, drawn lines through the parts I did not agree to, sometimes adding my own words, signed it, and handed it back. The HR person might be a bit shocked (or not--I've seen both), but I always reassure them that I realize their lawyers will want to look at it, and if they have any concerns, I intend to cooperate with them in working out an agreement that satisfies them.
I have, for example, rejected claims on my work outside of the office done with my own time/equipment and not in my employer's industry. You don't need the government to say it for you. You can say it yourself as part of the contract.
So far, the lawyers have always approved my edits with no further discussion and without contacting me. They just tell HR they're fine with it, and that's that. It's fun when this surprises HR, but again, sometimes it is no surprise to them at all.
It hasn't happened to me yet, but I'm sure there will be cases where HR will get very upset, so you'll have to be gracious about it and reassure them that you fully intend to satisfy their lawyers. But you'd think that the lawyers would be the ones who got upset, but they don't. Lawyers do this with each other all the time: A writes up a contract, hands it to B, and tells him to sign it. "This is our agreement." B edits it, signs it, and says, "this is our actual agreement", followed by more back and forth. So if you propose a minor change to a contract that you had no part in writing, that's just ordinary business for a lawyer, and it's what they would be doing as a matter of course when hiring a senior executive.
In my experience, that approach doesn't always succeed when the company has tens of thousands of employees, all of whom have signed a contract with the same wording. You have to be willing to walk away and, even then, you may fail to reach agreement on the terms.
One of the other capstone projects my year was a large local company (600+ employees) that asked the students to design a system for keeping track of the differences between contracts for different employees. Not only was this a non-issue for them, they actively embraced it.
Unfortunately, work from home greatly confuses the, "On your own time, with your own equipment" distinction. Hope your employer isn't paying for your internet, and that you aren't using its hardware for anything other than exact work situations.
I don't think CA is THAT much different in this regard. They can still claim ownership of inventions and IP for things done at home on your own time and equipment if it relates to the employer’s business or anticipated research or development (emphasis mine), which, for many large companies encompasses every project you could think of.
EDIT: Odd voting on this one. It's literally in my employment agreement. You might want to check yours!
Without making any argument about what is legal in California, I will note that it is not particularly valid to argue for “it is California law” on the basis of “its what my employer claims in the employment agreement”. Employers are notorious for claiming things beyond what the law allows, knowing that the resulting effect on employee behavior is nearly as good as if the claim was actually enforceable.
AFAIU, at least as it regards federal copyright law "scope of employment" is usually interpreted very liberally in favor of the employer. I can't speak to California case law, but I suspect that the tolerance Silicon Valley has historically shown to employees walking away w/ their "personal time" projects is more a reflection of the normative business culture than a legal restraint. I wouldn't expect IBM to walk away from WhatsApp the same way Yahoo did if one of their Almaden employees had created it.
Twice I've asked an employer for an amendment to the assignment contract to say that only works developed on my own time "with the primary purpose of benefiting the company" were assignable. Though, the second time I was told to f' off; to take it or leave it.
Now, California's legal hostility toward non-compete agreements is clear. It's not just because of the statutory law, but also because of precedent. Other jurisdictions could and have interpreted similar language differently (including other states interpreting California statutes, IIRC). That hostility is usually what people refer to, or would mean to refer to it they understood the nuances.
As you mentioned it I was to reiterate: you can negotiate on anything. Every time I had a non-compete clause in the contract (fortunately not that ubiquitous in Germany) I negotiated with the company to take it out & every time they eventually agreed (once I had to reached a compromise that I should inform them of such projects but the IP remains mine).
A lot of the time you'll hear "oh this is a standard contract, everyone signs it & we don't make exceptions". If they want you bad enough they will make an exception.
If they want you bad enough they will make an exception.
Most people don't have the luxury of walking away from an employer that won't make an exception with the confidence that they can find an employer who will.
>In most of the country, your employer can claim 100% of your intellectual output, no matter if your work was 'on your time'. If you come up with something clever on the weekend on your own computer, your employer still owns it.
In most of the country, your employer can claim 100% of your intellectual output, no matter if your work was 'on your time'. If you come up with something clever on the weekend on your own computer, your employer still owns it.
(Aside, I think this is one issue that could be a motivation for unionizing tech folks.... or at least collectively bargaining.)