Ask HN: Company got acquired, new contract seems oppressive • Hacker News Board

Re: Ask HN: Company got acquired, new contract seems oppressive

#241

Post by Silhouette » Wed, Jun 17, 2015, 4:54 PM UTC

crdoconnor wrote: post #56

pvg wrote: post #49

Earlier quoted context omitted.

Or, instead of that, they hand you a piece of paper where you get to list your inventions. Which is much simpler, less prone to misinterpretation and perhaps a reason why everyone does it that way.

Perhaps instead of that, they should give you a list of inventions which they own and you sign that, and anything else that you come up with on your own time is yours. It's ultimately about power. You rely upon the company for sustenance, it doesn't rely upon you. That manifests in contractual terms which are basically designed to give the company license to completely screw you.

Perhaps instead of that, they should give you a list of inventions which they own and you sign that, and anything else that you come up with on your own time is yours.

If the "list everything you've ever done" argument is reasonable, then the logical counter is actually rather stronger than that.

The true equivalent would be that the company must list all inventions and IP they have ever created in their history, including before you joined. Rights to anything they don't list automatically belong to you as the new employee, even if it was created on a work PC during working hours as a result of an employee's current job and the employee was duly paid for it. And if the employer then inadvertently grants rights to one employee and then the same rights to another one later, as they will for any invention or other IP they forgot to list, they are legally on the hook for any damages when it turns out they couldn't actually grant the rights the second (and third, and fourth...) time. Finally, employees are not required to accept any new items the company wants to add to its list of claimed inventions and IP, even if the new item is entirely created by staff on company time and using company resources.

I think it's fair to say you'd have trouble finding a company lawyer who advised their client to accept that kind of term. And yet companies attempt to impose the equivalent on their employees all the time.

Re: Ask HN: Company got acquired, new contract seems oppressive

#242

Post by pvg » Wed, Jun 17, 2015, 5:02 PM UTC

nemmonszz wrote: post #231

pvg wrote: post #22

This paperwork is standard. The company wants to protect itself against a scenario in which you, after being steeped in its business, come up with some way to do it better/more efficiently/cheaper but claim the idea came to you while you were at home in the shower and thus they have no rights to it. Your out is the form that lists the 'inventions' you might have that you want excluded from this clause. You can always…

I'm very uninformed on these matters, but just out of curiosity, what about the cases where you come up with some way to do it better but your employer isn't interested? Is getting them to sign a waiver saying that you can develop something on your own time on your own equipment the only way to legally create something that falls into the same category as what your employer is doing? So if they refuse to do that, you…

I think it's reasonable to say that you can't compete with your employer, without drawing their legal ire, while you work for them. The flip side of it, at least in California, that it's very difficult for an employer to keep you from working on whatever you want for whoever you want (as long as you're not actually infringing on their IP or running off with their trade secrets), once you are no longer employed by them. The examples of this are legion - HP didn't sue Wozniak after he left to invent personal computers. Same for everyone who leaves Google or Facebook or Apple to pursue some idea of their own. "Former employer sues budding entrepreneur" is a story you almost never hear.

Re: Ask HN: Company got acquired, new contract seems oppressive

#243

Post by bblough » Wed, Jun 17, 2015, 5:08 PM UTC

Silhouette wrote: post #234

bblough wrote: post #213

Earlier quoted context omitted.

> I have literally never encountered a company that stood by such a loaded term and lost their would-be new hire over it Not to discount your experience, but I actually just had this happen. I wound up walking away from an otherwise nice offer because they weren't willing to budge on their "we own everything you do, inside or outside of work" clause. So while it may be rare, it does happen.

I'm sorry to see that. There are always a few exceptions on these kinds of issues. For what it's worth, unless you really are in a desperate position, my usual conclusion is that you're probably better off for walking away as you did in this situation. A company that not only puts that kind of term in the default agreement but then also refuses to budge over it seems a high risk of trouble later from an employee's po…

Fortunately, I wasn't desperate, so I had the advantage of being able to walk away. And I agree with you - I think that ultimately I dodged a bullet.

It's a shame, though - I think I would have had a lot of fun working there and believe I would have made good contributions to the team. I'm disappointed, but I consider it their loss. Oh well.

Re: Ask HN: Company got acquired, new contract seems oppressive

#244

Post by pc86 » Wed, Jun 17, 2015, 5:11 PM UTC

fapjacks wrote: post #119

smcl wrote: post #95

Earlier quoted context omitted.

There's a relatively famous (and admittedly extreme\unlikely) example of this working in Russia, where someone changed his bank contract who blindly accepted it: http://rt.com/business/man-outsmarts-banks-wins-court-221/

"Stealing is a sin" from the head of a bank. What a psychopath.

That's not what that word means.

Re: Ask HN: Company got acquired, new contract seems oppressive

#245

Post by Silhouette » Wed, Jun 17, 2015, 5:13 PM UTC

learnstats2 wrote: post #84

tptacek wrote: post #78

Earlier quoted context omitted.

I have actually seen both crossing-and-initialing work, and, more often than that, simply not signing: take the paperwork, say you need to read it, and "forget about it". You can often slowroll things like this for awhile.

Warning: Slowrolling and continuing to work without objection may count as implicit agreement to an employment contract in the UK.

This principle applies more generally than that in the UK. Someone I know very well got screwed following a formal grievance at work because of this. Due to bad advice, a deadline in the process passed without the right things happening, and the formal process technically ended. Although the person was actively seeking other advice over the following weeks, they continued to work, and then when things came to a head, basically the first thing the company lawyers cited was the continued work without further (to the company's knowledge) objection. For practical purposes, that was game over in this case.

Bottom line: If you aren't happy with a contract, either explicitly challenge it immediately or don't start to perform your actions under it until the matter has been resolved.

Re: Ask HN: Company got acquired, new contract seems oppressive

#246

Post by pc86 » Wed, Jun 17, 2015, 5:16 PM UTC

Lawtonfogle wrote: post #169

InclinedPlane wrote: post #121

Earlier quoted context omitted.

Both parties need to initial the crossed-out sections for it to be fully legally binding. It's best to just ask for a new version without the sections you don't want to agree to, it's no use trying to fly under the radar, that's dishonest.

I don't see it as trying to fly under the radar. I see it as 'you demands are so stupid you don't deserve a verbal response'. These sorts of contracts are so lopsided that not getting a verbal response is probably the most polite response they will be getting from me.

Are you a professional?

If someone can't have a conversation about an employment contract any more politely than "no verbal response" I have to wonder how they ever get hired in the first place.

Re: Ask HN: Company got acquired, new contract seems oppressive

#247

Post by Silhouette » Wed, Jun 17, 2015, 5:21 PM UTC

pascalmemories wrote: post #176

learnstats2 wrote: post #84

Earlier quoted context omitted.

Warning: Slowrolling and continuing to work without objection may count as implicit agreement to an employment contract in the UK.

Except in the UK you have Transfer of Undertakings and Protection of Employment (TUPE[1]) to protect you from being handed a 'new' contract on acquisition. You must not have worse terms than with your previous employer. You certainly cannot be forced to hand over IP which was not covered under the previous contract. Employers bent on evil normally give you around 3 months then 'restructure' the company (i.e. give you…

Except in the UK you have Transfer of Undertakings and Protection of Employment (TUPE[1]) to protect you from being handed a 'new' contract on acquisition. You must not have worse terms than with your previous employer.

That's a nice theory, but in practice we also have lawyers who specialise in dealing with M&A situations and minimising the impact of TUPE. I've been in a situation that looks like a textbook example of what TUPE was intended to cover, yet one of the first things the acquiring company's lawyers did was seek to limit its effects, apparently quite successfully.

As you pointed out, any protection you get under TUPE tends to be for only a relatively short period anyway. It might be enough to stop you getting completely screwed over on the day the acquisition goes through, but ultimately if the new employer or their management team are not the same kind of people you used to work with, you're probably still better off getting out early.

Incidentally, this is also a good argument for not signing a dubious contract even if you know and trust the current employer and management team. In the event of a change in control of the business, the incoming leadership get to keep the same terms by default; that is considered reasonable since you already worked under them before. So just because a nice employer doesn't exploit some contractual advantage today, you should never assume the new face of that employer won't do so tomorrow.

Re: Ask HN: Company got acquired, new contract seems oppressive

#248

Post by pvg » Wed, Jun 17, 2015, 5:29 PM UTC

mikeash wrote: post #238

pvg wrote: post #22

This paperwork is standard. The company wants to protect itself against a scenario in which you, after being steeped in its business, come up with some way to do it better/more efficiently/cheaper but claim the idea came to you while you were at home in the shower and thus they have no rights to it. Your out is the form that lists the 'inventions' you might have that you want excluded from this clause. You can always…

I really hate this idea that there is anything you can put your signature to which is "standard" or "a formality." I can absolutely 100% guarantee you that if there ends up being a legal dispute here, anything and everything signed by the employee will be used against them to the extent possible. Nothing is going to be "a formality" in that case, which is the only case where it really matters. "Standard" is just anot…

Well, I hate to be the 'do you even lift, bro?" guy but do you work in the US? Has an AoI never crossed your desk? These aren't some oppressive tools of the man trying to keep you down. They're an attempt to head off the terrible problems that arise when IP issues are not explicit. And yes, they're standard. Was your response to 'standard' the same last time you signed an agreement for apartment rental or car insurance? How did that work out?

Re: Ask HN: Company got acquired, new contract seems oppressive

#249

Post by olefoo » Wed, Jun 17, 2015, 5:31 PM UTC

hga wrote: post #154

olefoo wrote: post #29

Remember that this contract is a negotiable agreement. You can strike clauses and file an amended agreement, they can refuse to accept such things; but you are not obligated to sign unless they are compensating you adequately for what you are giving up. Approach this as an equal; decide what _you_ are willing to put up with. Nobody on this forum can tell you what you can and cannot live with. Do figure out your BATNA…

but you are not obligated to sign unless they are compensating you adequately for what you are giving up In the US, at least in general, this is a contract, and without the employee getting "consideration" it's not valid. And mere continued employment doesn't count, they'd have to give you something extra such as a raise or bonus.

What I meant by 'not obligated to sign' was that there are more than a few paths open. Some of those paths involve separation from this employer. The original poster needs to figure out what his options are, and what he can do if he can't negotiate an outcome he finds satisfactory.

Re: Ask HN: Company got acquired, new contract seems oppressive

#250

Post by Silhouette » Wed, Jun 17, 2015, 5:32 PM UTC

moron4hire wrote: post #181

xienze wrote: post #42

Earlier quoted context omitted.

Can you elaborate? He was interviewed as in, came in off the street, so to speak, to interview, made mention of having a lawyer review contract language and was cut a check? Or was this an interview with the acquiring company?

He went through a phone screening, then a technical interview. They made him an offer and sent him a contract. A clause in particular caught his eye: Employee fully and unconditionally grants, assigns and transfers to the Company any and all Inventions created, developed, discovered, conceived, invented, learned, or suggested by Employee during the performance of Employee’s obligations under this Agreement and for a…

during the performance of Employee’s obligations under this Agreement and for a period of one (1) year thereafter

This sort of term is exactly why you get a lawyer to review the contract. If it's enforceable (big "if", in many places) then that's a guaranteed year you can't realistically either be employed by anyone else in the industry or be working on something like open source projects to keep your skills up to date. As career death sentences go, that's probably pretty close for anyone early in a career in software, web development, or any similar creative field.