Why I Don't Sign Non-Competes • Hacker News Board

Re: Why I Don't Sign Non-Competes

#281

Post by Terr_ » Thu, Mar 22, 2018, 4:43 AM UTC

Thiez wrote: post #37

joezydeco wrote: post #5

So recently I came across an Invention Disclosure agreement that a company wanted me to sign. The phrasing of this kind of threw me off: "I will promptly communicate to the Company each and every invention, discovery or item of intellectual property made or conceived by me, either as an individual or jointly with others, during my period of employment, and I agree that any such invention, discovery or item of intelle…

That's crazy, copyright also counts as intellectual property, so technically you'd have to promptly communicate to the company almost everything that you write (I'm pretty sure all of your HN posts would qualify), every stick figure you draw, every song you hum (you have copyright on your performance). That contract forbids you from doing any creative work for a year after you quit (or are fired). I don't suppose tha…

I'm having fun imagining the malicious compliance that you could do.

Come to think of it, every email you write to them notifying them of new copyrighted work can itself be new copyrighted work...

Re: Why I Don't Sign Non-Competes

#282

Post by ThenAsNow » Thu, Mar 22, 2018, 4:49 AM UTC

ryandrake wrote: post #211

jdbernard wrote: post #196

Earlier quoted context omitted.

I've always pushed back against "all IP even on my own time with my own equipment." You're right that it's common in tech employment, but it's never been a deal-breaker for me. ---- edited to elobrate You can almost always reach a compromise if you aren't a jerk about it and can show you understand the company's concerns. Typically I have it modified so that if I'm using their resources at all (office, computer, pen…

In the past, when I’ve tried to politely push back against these, the response has always been a firm “sign the agreement unmodified or GTFO.” When your employer has 500 lawyers, you do what they say or get back to the job hunt.

These "IP agreements", in my experience, include an "Invention Disclosure" section where you can submit a list of "inventions" that you developed before you took the position. It's supposed to be the blacklist of stuff explicitly excluded by the IP ownership agreement (i.e., you still own it since you "invented" it before you joined the org). Usually they give you a few lines to write these in. My approach has been to provide this as an attachment with an exhaustive list ranging from things I've actually developed all the way to mere ideas that could be realized in some form. Of course, every new time you have to sign one of these, the list should be longer. Each item should be broadly written; they can't be asburdly broad, like "Software to perform transformations on data", but you can undoubtedly find ways to make the item more specific to certain domains, and write in that annoying "cover your bases multiple times" form of legalese, e.g. "Tools, methods, and approaches in distributed and monolithic data aggregation, satisfying static and dynamic reliability constraints".

I reliably hear from HR or contracts that I'm the only one they've seen fill that section out, and certainly to the length I typically provide, but they duly accept it and execute the agreement. I've never seen them send to an IP lawyer or anyone else to screen the list for legitimacy.

Considering how challenging litigating technical IP claims is, I think this should have some amount of reasonable deterrent effect regarding threats or actual wanton IP theft litigation after leaving the org's employ.

Re: Why I Don't Sign Non-Competes

#283

Post by ethbro » Thu, Mar 22, 2018, 5:38 AM UTC

lmkg wrote: post #238

ethbro wrote: post #110

Earlier quoted context omitted.

So you feel it's just for employees to hold themselves to higher ethical standards than their employer? To their own financial detriment? I'm being pointed here, but I feel that's a fair representation of what we're talking about. Specifically for all but the most specific competitor-worded non-competes, the company knows exactly what it's doing: retaining employees through a cheaper method than compensation.

First, I think the ethical standards one holds oneself to should be independent of who you're interacting with. Lying to a saint is the same as lying to a sinner. (I think lying is justifiable in many cases, but "lying to a bad person" is not a blanket justification.) If for no other reason, it creates a race-to-the-bottom for acceptable behavior. Second, in this particular situation there is an above-board alternati…

I used to think more in the mode of your "First" perspective. Yet the more of the world I see, the more I come to believe that in a majority of important life situations (in the US at least) acting in an unethical manner is a strictly winning strategy (from a game theory perspective, in that it trumps all possible other strategies).

Not that I'm using that as an argument to be an unethical person.

But I am saying I feel it's a justification to act in a more Rooseveltian realpolitik manner: treat someone ethically until they demonstrate a lack of ethics. And even then, strive to conduct oneself to a higher standard, but firstly protect yourself and your aims at all times.

Most unethical behavior seems advantageously predicated on others' ignoring / accepting it. To the contrary, confront it! And win!

To your second point, granted with a caveat. The "freedom to turn down a job" is a freedom many aren't afforded (and I daresay most don't have the benefit of affording at least once in their lives).

Saying "Yes, but we have better, more ethical alternatives" feels elitist and... inapplicable to the average working person.

So yes, while most people commenting here may have that option, there are a huge number that don't. (Hence why non-competes should be ruled unconstitutional)

Re: Why I Don't Sign Non-Competes

#284

Post by beagle3 » Thu, Mar 22, 2018, 6:50 AM UTC

lr4444lr wrote: post #264

beagle3 wrote: post #259

Earlier quoted context omitted.

Depends on jurisdiction. Turns out that in Israel, for example, where non-compete agreements require material specific pay, a non-compete lasting 3 years or more, is generally considered an asset sale and is taxed as a capital gain transaction (25% instead of the ordinary income which has brackets that go as high as 55%).

where non-compete agreements require material specific pay That's materially different. Anywhere in the United States, AFAIK, non-compete is not part of a "golden parachute" with continued post-severance pay except for C-suite people - sometimes . Employment is at-will on both sides in the United States in the vast majority of private labor.

Employment in Israel is (if there's no union involved) mostly at-will as well, even if not quite as at-will as the US.

However, it is my understanding that e.g. California is similar. It's not that asking someone to sign a non-compete clause is illegal; what is illegal is not properly compensating them for it. That is, a clause like "in the event of lawful termination of employment by either side, for a period of up to (at the employer's discretion) 12 months, you will continue to receive your salary and will not be allowed to compete with employer".

Such a clause is legal in Israel, and indeed it is how binding non-competes are implemented. I haven't had employees in California in almost 20 years now, but AFAIK it is similar there. It is probably worded differently because of how the non-compete laws on the books are written, but I've heard of cases where something to that effect was deemed legal and enforceable.

Re: Why I Don't Sign Non-Competes

#285

Post by alain_gilbert » Thu, Mar 22, 2018, 8:41 AM UTC

Is it legal to publicly share a job contract/agreement ?

It could be nice to have a website that list all the companies and link all the known contracts for these companies.

We could even have a summary of the weird clauses.

Or some checkmarks. IE:

  [X] You own your IP after work hours produced on your own computer

This way, someone would know when he receives an agreement to sign from a company, what clauses he needs to be careful about. Or what clauses people are usually able to negotiate / modify.

Re: Why I Don't Sign Non-Competes

#286

Post by rmc » Thu, Mar 22, 2018, 9:26 AM UTC

doctorbigtime wrote: post #118

I agree with the general gist of the article, for one specific reason: the non-competes discussed don't come with any pay. In much of trading-related finance, non-competes or garden leaves are ubiquitous, with periods lasting between 6 months and 2 years. However, they are usually paid, and in many cases paid well (more than your annual base salary). In my view, this makes sense: you may have learned a trading strate…

That's fine. If someone is willing to pay you, then they are allowed to tell you what to do. Whether that's "Do this job", or "sit at home watching TV, but don't work for this company"

Re: Why I Don't Sign Non-Competes

#287

Post by jobigoud » Thu, Mar 22, 2018, 9:42 AM UTC

Retra wrote: post #270

jobigoud wrote: post #142

Earlier quoted context omitted.

The one-year is for the disclosure of the idea/discovery. So what this says is that they have IP on inventions you made while employed, even if you only disclose that invention after having left. It does not say anything about inventions made after you left.

It says if you disclose an invention after you left it is presumed to be made before you left. So if you leave, make something, then disclose it, they will presume you made it, left, then disclosed it.

The thing that is "presumed to have been made during my period of employment" is "any _such_ invention, discovery or item of intellectual property", and the "such" here refers to "each and every invention, discovery, (...) made (...) during my period of employment".

It's pretty redundant and there could be a fight regarding when the invention was made vs disclosed, but the wording limits it to the period of employment.

Re: Why I Don't Sign Non-Competes

#288

Post by jonathanstrange » Thu, Mar 22, 2018, 10:00 AM UTC

Terr_ wrote: post #280

jonathanstrange wrote: post #21

Earlier quoted context omitted.

In theory you can (but unfortunately nobody does). Send a letter via snail mail that clearly states that you disagree with their EULA but were unfortunately only made aware of the EULA after your purchase. Include a printed, revised EULA with your proposals for changes. Be reasonable in the changes you propose. If they reply to you that they disagree with the changes, they can prohibit you from using the software or…

I don't know, this sounds a little bit like that sovereign citizen "wrong flag in the courtroom" stuff. Even if they haven't replied, the original contract is still sitting there clearly stating that a certain set of assumptions are in place if you use the software. I don't see any way to argue that a non-reply implies consent to new terms or abandonment of any terms.

A contract is only valid if both parties agree. If one of them explicitly disagrees, the contract is definitely not valid.

Re: Why I Don't Sign Non-Competes

#289

Post by checkyoursudo » Thu, Mar 22, 2018, 5:41 PM UTC

d0lph wrote: post #240

checkyoursudo wrote: post #202

Earlier quoted context omitted.

Implicitly signed? Like verbal assent? Yes, some kinds of contracts do only require verbal assent of the parties in order to be executed. More specific about what? I can try.

Like what scenarios would a signature not be required, it is my understanding verbal contracts are enforceable. But can you give verbal assent to a written contract?

In absolute numbers, there are probably more contracts executed every day that must be in writing, but there are probably more types of contracts that simply do not require writing.

In any of these types of contracts that do not require writing, you can write your terms down on paper (or memorialize them in any way you agree upon; email, napkins, etc) and still verbally execute the agreement. The writing will then become evidence of the verbal agreement.

For any specific type of contract, you will want to consult a lawyer in your jurisdiction. There is just too much variability to account for.

If your question is, "If someone gives me this written contract, and I don't sign it, but I say, 'yes, I'll do this' -- can this contract be enforced against me even if I didn't mean it and didn't sign it?"

The answer to that could very well be: Yes, you're on the hook. So don't say yes unless you mean it.

Don't ever say yes just to get out of a situation. Say, "I need to think about this for a couple of days." And if they push you, then say you're really sorry but you can't agree without thinking about it.

Re: Why I Don't Sign Non-Competes

#290

Post by cwkoss » Thu, Mar 22, 2018, 6:56 PM UTC

emmanuel_1234 wrote: post #275

cwkoss wrote: post #254

Earlier quoted context omitted.

I would totally DDOS legal with a deluge of stupid inventions. Toilet which makes farting sounds when you flush it. Spoon with a hole in it so you spill on yourself. Mug without an opening (solid cylinder with handle) Computer monitor that only displays the color pink. Headphones with integrated q-tips iPhone but its a triangle Strap for swinging a chainsaw over your head like a helicopter

Porn. Lot of porn. And stuff related to country the US are not too friendly with, like Pakistan. That would make their investors / bankers absolutely freak out.

"What is the 'Shariah Sexbot IP' and why is it on our balance sheet?"