Comment by hbrav | Hacker News Reader

Comment by hbrav | Hacker News Reader

The most interesting thing about this is the linked article about the employer that tried a bit of sharp practice to insert additional clauses into the NDA: https://rachelbythebay.com/w/2011/11/09/signs/

There's definitely a few morals to this story (but note: not legal advice! I am not a lawyer!):

1. You should keep your own copy of anything you sign as part of your employment contract.

2. You should maybe keep a record of when you handed that to your employer ("I did in fact sign a copy of the NDA when I began my employment, and handed it to [person] on [date]. I hope this helps you to locate it.")

3. If the NDAs are so long that it would be impractical to visually diff them, you can just ask the company: "Can you please ask [name of company lawyer] to send me an email confirming that this is the same NDA that I signed at the beginning of my employment on [date]?" If they do, and then later rely on a clause that has been inserted, I suspect they would have a hard time convincing a court to enforce that clause.

4. In the author's situation, they sound like they were over a bit of a barrel economically and it's hard to push back in that situation. If you are willing to push back, remember that your employer is asking for something from you, i.e. a change to your contract. And if that change is that they can audit your personal devices, that is not a small concession! "This NDA does differ substantially from the one I originally signed, and would represent a significant change in the conditions of my employment. I understand if the company has new security concerns, and I am willing to work constructively to find an acceptable solution. For instance, if you are uncomfortable with me being able to access work e-mail on my personal device, you can issue me with a separate device over which you would have auditing rights."

I once had a company ask everyone to sign updated employment contracts that changed the vacation policy to "unlimited PTO".

So I opened up my original contract and compared them... and wouldn't you believe it? There were other changes in the contract: they'd added non-compete and non-solicit clauses, and tweaked the IP language to make it broader.

I talked to the company lawyer to ask for an explanation, and they became very embarrassed and they walked back all those changes, claiming that they'd used a new law firm and this happened because that firm had used their "standard boilerplate". They sent everyone a new copy with just the PTO change.

Of course, then I refused to sign the updated one, because I'm a jerk who thinks "unlimited PTO" is a scam. :)

> Of course, then I refused to sign the updated one, because I'm a jerk who thinks "unlimited PTO" is a scam.

Unlimited PTO is only a scam if you are a) bad at taking care of yourself, and b) have a shitty manager.

I've been taking every other Friday off since last summer, and in addition to that take 4-5 weeks off during the year (a week or two at a time). Hasn't been a problem because I get my work done, and I have a manager who understands we all need downtime to be healthy (and productive).

In my experience, most of the people who end up taking less time off when their company switches unlimited PTO are just bad at taking care of themselves, and (incorrectly) believe they'll be penalized for taking time off.

Incorrectly believing you'll be penalized is still the company's fault, because you're going to be penalized at some point and the company is hiding what that point is. Taking the PTO becomes a gamble.

Nobody would accept a job where the company told you "well, it's unlimited pay. Just tell us when you need some money and if it's not unreasonable we'll give it to you."

I don't think unlimited PTO is necessarily a scam, but it's only a benefit if you're a highly productive employee that takes more than 15-20 days off per year.

there is one major downside of unlimited PTO. I don't take very much PTO. maybe I should, but I don't (and especially haven't during quarantine). as a result, I am pretty close to maxed out. whenever I leave the company, I will get an additional check for one month's salary. with unlimited PTO, I would get nothing.

I'd add to also keep a copy of any substantial agreement/clarification alongside the proper legal paperwork. The PTO wording was a bit confusing, you ask for clarification and they tell you it's 21 work days and not 3 natural weeks? Keep a copy of those email/slack/etc., preferably one from HR and one from your manager where they both agree. Just push them in the same binder, they are probably not so many situations to make this bothersome but it can be helpful.

Luckily I've never needed it in any kind of legal situation, but a couple of times they saved me of a "he said she said" kinda conversation.

This is also excellent advice.

Actually maybe I should also add: keep not just the text of those e-mails, but also the from, to, date fields etc. If you ever get into a I-said / they-said about this, your employer might claim that your e-mails are a fabrication. If you get as far as a discovery process, and the company has to turn over e-mail records, that's going to make it much easier to locate the e-mail in question.

If you’re putting things in binders, print out the full headers of the emails. Maybe even the raw mail; though I admit html mail makes that very unpleasant.

"I did in fact sign a copy of the NDA when I began my employment, and handed it to [person] on [date]. I hope this helps you to locate it."

I'm not sure how important this is. Of course they still have the old NDA, and in any perjury situation they would readily admit that. Managers and (especially) HR people regularly "fib" (synonym of "lie") in hopes of distracting attention from the monstrous demands of capital. If an employee made a big stink, that employee would be reminded that employment is at-will and thus contingent on signing whatever is required at any time. The worst NDA amendments could possibly be contested in court, if one wants to spend five figures on attorneys. Probably a better way to avoid surprise "renegotiations" is to unionize...

A union is definitely the gold-standard defense against nonsense like this. But a lot of places have significantly higher employment protections that the US.

Remember, it's not always you that has to go to court to fight an NDA clause though. If you've resigned, and the company is insisting that it can search your devices because the NDA says so, the company is the one that needs to convince a judge to grant a court order allowing it to do so. (Again: not legal advice! But my understanding is that's how most contract rights need to be enforced.)

> the company is the one that needs to convince a judge to grant a court order allowing it to do so

Except they still have the legal advantage of more moneys and lawyers. There is no easy win unless the judge intervenes before you pay lawyers too much.

True, but it still puts the work of filing etc. on them. You can always self-rep. It's usually not a good idea, but here your argument is really very simple: "I signed this NDA on the basis of specific assurances, which were false. I have a record of those assurances from [company lawyer]."

You can also just string it out, and on the first day you are due in court say "ok here it is". You dont need to pay a lawyer anything, the company just has to prove that it is really committed to getting this info. To go as far as having a court date set and lawyers ready to turn up. Personally I would arrive at court to ensure they sent some actual lawyers and then if I couldn't argue my point happily hand it over at no expense to myself other than taking a day off to attend court.

>If an employee made a big stink, that employee would be reminded that employment is at-will

This applies to the US only. I wonder if American employees understand that their employers exist/operate in the EU too and the employees there are treated very differently vis a vis employment rights.

New contract changes are unenforceable without compensation in most cases. If you're getting a new NDA or somesuch rolled out it's why it usually comes with "Free 10$ starbucks gift cards for everyone surprise!" but a lot of the time any contract you sign that does nothing to benefit you is illegal - you can also refuse to sign new contracts and, depending on the company, they might just shrug and carry on with the old contract.

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