Comment by throwaway549328 | Hacker News Reader

Comment by throwaway549328 | Hacker News Reader

throwaway549328

This isn't legal advice. As a practical matter let me tell you exactly what I, personally, would do in your exact situation, as an employee. I am very open and approachable, and have never gotten into legal trouble with anything. I personally would feel completely comfortable following the steps below and would not personally consult a lawyer. I am telling you precisely what I would do if I place myself in your shoes.

First, in the contract, you state that the section you mention talks about past, and about present IP. I would, on the appropriate page, prominently cross out the section on past IP (completely) and date and sign (full signature) the margin. (i.e. indicating that IP created before employment isn't covered or referred to at all).

In the same section, regarding the present and future inventions, I would write by hand in the margin "Except on my own time and outside company resources" in the margin of that section, and date and sign (full signature) it.

So there are two changes: completely cross out the entirety on past inventions; add an explicit "Except on my own time and outside company resources" regarding present and future inventions. (I would retain the language, i.e. not cross it out completely.)

I would then sign the last page of the contract (i.e. wherever your signature belongs) with a note saying "except past IP, p.6" (or whatever page it appears on) and date and sign that.

This to me makes it completely clear exactly what I agreed to, anyone glancing at the signature would be told to look at page 6, where they would see a totally reasonable crossing out of past IP assignment, and a totally reasonable statement that I own IP created on my own time. No reasonable human could possibly be anything less than satisfied with that. I would also be satisfied with it if an employee gave me that back.

It's a lot better than underhandedly trying to change the contract without calling attention to the change. It's precisely what I would do. Anyone who said, "we're really going to need your own IP" would look really silly. I don't think I've met anyone who would have the gall to say that. You've also signed and returned the contract.

I'd go even further, and actually discuss it with them before making these changes, not just hand in the signed contract with the clear changes. Tell them : "I'm uncomfortable with this. What would make me comfortable is ..." and then detail what you are describing.

I (personally) wouldn't. The boilerplate text their lawyer originally wrote is inapplicable, but they're not bad people, it's just that that particular lawyer has never had an idea in their life. (Only someone who has never had an idea would think a person can list every idea they've had.) so besides crossing the inapplicable section unambiguously, it's not worth a comment. I wouldn't say I'm uncomfortable with it. I am extremely comfortable, with the whole contract, I just removed the part about past IP since it obviously doesn't apply. The rest looks fine! Excited to start. :)

really, it's hardly worth a comment. they obviously don't mean to acquire IP from your past.

Any suggestions on Non-compete clauses that basically say you can't work for any competitors or customers. In a multi-national corp that is basically every possible employer.

If I were you and in California I would ignore anything related to non-compete without feeling any need to modify it, as I heard from multiple sources that they're totally unenforceable: http://ymsllp.com/news-and-publications/with-limited-excepti... and also against the cultural spirit people actually believe in. It's as though that stuff weren't present at all.

If you're outside California, I would in your position look at how people actually behave, as well as the law. Possibly I would choose to read the non-compete literally and just do the right thing afterward. For example, I might choose not to take a competitive position for the period outlined in the contract, and instead do something slightly different. It's largely a moral thing, I think.

If the non-compete were very broad (no job on Earth for a period of 18 months after termination of employment) I would just ignore it; what are they going to sue me? They wouldn't care.

I don't think I would push back to modify non-compete clauses, and I certainly wouldn't do it in the way I mentioned for IP, however. It depends on jurisdiction. It's quite a cultural thing.

One of the problems--if the non-compete is with a large company--is that a lot of potential companies that you might go to work for will walk as soon as they find out you have a non-compete. I worked for a small firm for a number of years and we passed on a couple of hires because they had broad non-competes that could have at least theoretically applied to us. As far as our business office was concerned, it just wasn't worth the risk.

I've known of other companies that didn't have quite "no job on earth" clauses but were pretty serious about enforcing non-competes against anyone taking a similar job with another company. That's pretty restrictive.

Even though the chances of the broad non-compete actually being enforceable are low the threat of being tied up in a litigation is real and expensive. My gut feeling is that they would not enforce it on lowly engineer like myself but if they did I couldn't afford to actually fight it.

wouldn't they sue the employee in question (the poster, or me in that situation) rather than the employer? How are you at fault for hiring someone with a non-compete you didn't know about... what is there to sue you over?

In the scenario I gave, the potential new employer did know about the non-compete and chose not to hire as a result--whether or not the non-compete would actually have applied. How did we know? We asked as I was asked when I was hired at that company.

That said, in lawsuits, lots of people and organizations tend to get sucked in whether they deserve to be or not. The bottom line is that non-competes have significant chilling effects whether or not lawsuits are ultimately filed.

Probably, but employers don't want to invest in hiring someone that could be taken away. Even if the new employer is not involved in anyway they could get sucked into the legal battle and then have to pay to prove they have nothing to do with it. After all you don't have to actually be guilty of anything to be involved in a lawsuit. Also it's possible there is a non-poach agreement if the new employer is a customer of the old employer. In my case a client cannot poach me if I have worked on their project in the past 2 years. Then there are those illegal non-poach agreements...

I'm unclear where you learned that the employee had signed such a contract, especially if in that jurisdiction they are not bound by it. Did you ask to see copies of their past employment contract? I would feel zero obligation to mention this to my future employer if it doesn't apply in my jurisdiction.

It's like, if I had signed a non-contract stating I'm now a slave, I'd just ignore that contract. (What I'm saying applies to California.) Certain things just don't have any legal significance. (Such as indentured servitude.)

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