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Contracts you should never sign

vadimkravcenko.com

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Re: Contracts you should never sign

#141

Post by claytonjy »

thwayunion wrote: post #128
codingdave wrote: post #13

> the best thing we as engineers can do is be aware of the types of contracts we're signing I'd argue that the best thing we can do is to not just make generalizations about what is OK to sign or not. Confidentiality agreements and non-competes are fine if they are narrowly focused, fair, and your compensation is sufficient to make it worth the restrictions. Because that is what a contract really is - a balancing act…

Serious question: is it even possible to get a well-paying dev position that doesn't have one or more of the clauses listed in the article? Another consideration is whether the contract can be enforced and your legal recourse if the counter-party attempts to enforce an invalid contract clause. This is particularly true for noncompetes. A better piece of advice than "never sign" is to simply find an employment lawyer…

I have successfully negotiated my way out of non-competes and other onerous employment contract terms. Only at small- or medium-sized startups, though, not big tech. In general the bigger the company, the less willing legal is to play ball. I suspect going for rather senior roles helps, too.

Re: Contracts you should never sign

#142

Post by thwayunion »

dilyevsky wrote: post #119
smeej wrote: post #21

Also verify that anything you're signing when you leave matches what you signed when you were hired. I recently left a company where, when I was hired, I had agreed in "Appendix C" not to recruit any of their employees away from them for a period of 12 months after separation. When I actually separated after more than two years, the "Appendix C" they wanted me to sign and presented as the one I had agreed to at hire…

Easiest way to do this is to not sign anything unless it involves extra pay. I’ve politely refused HR’s request to re-sign bunch of documents before when leaving - I didn’t feel like digging through them or paying a lawyer and they had zero leverage

I've never refused, but I do always outline the (usually low four figure) cost in time and legal expenses required to review the contract. I close by explaining that I cannot in good faith enter into an ostensibly binding contract without some form of consideration from my counter-party because such a contract would be difficult to enforce in any case.

HR never knows what to do and usually just never gets around to replying to the email.

Re: Contracts you should never sign

#143

Post by riskable »

WalterBright wrote: post #127
RaCaS123 wrote: post #80

Earlier quoted context omitted.

(also worth taking into account whether clauses like an absurd non-compete are even enforceable...)

It is dishonorable to sign an agreement knowing you won't adhere to your end because it's unenforceable. After all, we make promises all the time that are unenforceable, but we keep them.

That's like saying, "it's dishonorable to agree to a contract to kill someone knowing full well such a contract isn't enforceable."

If one party holds all the cards in a contract negotiation it's never truly being negotiated in good faith in the first place. Furthermore, one could argue that without having an expert on contract law right then and there available to answer any questions about any given contract means it falls under a "lack of capacity" for basically anyone who isn't a lawyer.

Employee agreements often fail in courts because of:

    - Duress
    - Lack of capacity (e.g. due to overly complicated legalese *specifically written to be hard to understand*)
    - Undue influence (e.g. company says they'll hire someone else if you ask to get the contract reviewed by a lawyer before signing)
    - Misrepresentation (e.g. job was described as "X" but turns out it's "Y")
    - Non-disclosure (e.g. candidate was not told job would require purchasing products or services sold by the company itself or a partner)
    - Unconscionability (e.g. some term or terms in the contract are so unfair that it cannot be allowed to stand... Like a non-compete that says you can't work within 50 miles of your former place of employment if you leave)
The "usual one" is unconscionability: Employers have unfair bargaining power almost all of the time and judges and juries are easy to convince of this. Also, these sorts of things don't usually make it to court unless there's something ridiculous in the contract. What's interesting is there usually is something ridiculous in every employee contract. It's just that those ridiculous things aren't usually the part of the contract a company is trying to enforce so they don't come up as often.

Re: Contracts you should never sign

#144

Post by hfifjdghu »

riskable wrote: post #132
swader999 wrote: post #111

Earlier quoted context omitted.

A lot of doctor and vet contracts are like that because they are likely to get a large local client following just by joining a practise that the practise has spent years cultivating.

There's an easy way to solve this problem without non-competes: Treat your employees better . Usually by paying them more . The entire concept of going to work for someone else is that it's supposed to save you a lot of trouble having to sell your services on your own/run your own business. If it has become so much more profitable for doctors to leave and start their own practice then they should be doing that becaus…

This perspective completely evades the actual argument which was that practices behave this way because they're extending access to their client base which is a resource they cultivated themselves and which will almost certainly yield a following the the new applicant.

Re: Contracts you should never sign

#145

Post by dilyevsky »

ccleve wrote: post #99

This is exceptionally poor legal advice. Non-competes are legit if they are narrowly limited in time and scope. It's perfectly fine for a company to demand that if they hand over their proprietary know-how to you, know-how that has cost them years to acquire, you won't take it to the competitor across the street. And no, an NDA is not enough to protect them. They own this information, not you, and no, you can't take…

Maybe they are legal (definitely not here in California) but the moral argument you’re making doesn’t make much sense because it works both ways - company has no intention of unlearning your past years of experience when you leave and so neither must you

Re: Contracts you should never sign

#146

Post by thwayunion »

claytonjy wrote: post #141
thwayunion wrote: post #128

Earlier quoted context omitted.

Serious question: is it even possible to get a well-paying dev position that doesn't have one or more of the clauses listed in the article? Another consideration is whether the contract can be enforced and your legal recourse if the counter-party attempts to enforce an invalid contract clause. This is particularly true for noncompetes. A better piece of advice than "never sign" is to simply find an employment lawyer…

I have successfully negotiated my way out of non-competes and other onerous employment contract terms. Only at small- or medium-sized startups, though, not big tech. In general the bigger the company, the less willing legal is to play ball. I suspect going for rather senior roles helps, too.

Non-competes are dog-eat-dog "fuck you" territory for me. I don't even bother negotiating. I happily sign non-competes, but will never sign a non-compete that's actually enforceable. If their lawyers want to lie to me about what's legal in my state, I'm happy to let them engage in unfair and deceptive behavior right up until there are actual damages.

More importantly, I would also happily fight them in court if it came to that (and retire on the triple damages).

I'm thinking of some of the other clauses:

1. "one-sided termination clause": Every contract in an at-will jurisdictions without a guaranteed exit bonus contains, implicitly or otherwise, a "one-sided termination clause". I have never seen a contract for "normal working stiffs" that contains an exit bonus, and I've only ever worked in at-will jurisdictions.

2. IP assignment

3. Confidentiality agreements with broad language

Re: Contracts you should never sign

#147

Post by mordae »

BeFlatXIII wrote: post #117
ccleve wrote: post #99

This is exceptionally poor legal advice. Non-competes are legit if they are narrowly limited in time and scope. It's perfectly fine for a company to demand that if they hand over their proprietary know-how to you, know-how that has cost them years to acquire, you won't take it to the competitor across the street. And no, an NDA is not enough to protect them. They own this information, not you, and no, you can't take…

Restricting the collective progress of humanity so that investors can make back their money.

Restricting the collective progress of humanity so that investors can profit.

It's never about making the money back, is it?

Re: Contracts you should never sign

#148

Post by toss1 »

chasing wrote: post #137

Treat contract negotiation as a trial run for your future relationship: Do they try to slip nasty stuff in there? Do they do stupid shit? Do they refuse to answer questions clearly? Is it a hassle trying to get them to make modifications? Are things vague, open to too much interpretation, or missing key information? How someone behaves during contract negotiations is an indicator of how they'll behave generally. If y…

Exactly!

It has gotten to the point where I take any contract put in front of me as a statement of how the other party does business. If they contract is all one-sided to their benefit and/or has crazy escape hatches for them and/or penalties for my side, it's best to just walk away, even if it costs a lot. I've tried to negotiate such clauses into something reasonable, and it is just a waste of time. They've told you how they do business the first time — believe them the first time.

When I write contracts, I make sure that they are mutual, down to the structure of every sentence and paragraph. E.g., "Both parties shall treat confidential information with the same care as their own confidential information..." in an NDA for prospective joint development. I'm not the only one, and I've seen that sort of approach many times ('tho less often that I'd like). Those are the kind of people/companies I want to do business with.

Avoid the former like the plague that they are. You'll save yourself a lot of trouble.

Re: Contracts you should never sign

#149

Post by riskable »

Aeolun wrote: post #52
secondstring wrote: post #39

Earlier quoted context omitted.

> because nobody involved in the hiring process consciously chose to put that clause in and they probably don't really give a damn. Yes but I think I didn't convey my point enough. Nobody involved in the hiring process cares, and if it's a good company they probably agree with you. But this standard contract is what they paid attorneys good money to comb over with a fine tooth comb for liability, and eventually sign…

Nobody is going over a contract with legsl just because they removed the ‘we own everything you make’ clause. That’s an irrelevant part of the contract.

At big companies they will not change the contract for a single candidate. No way. Not unless it's a "big deal" sort of job where the executives are involved. They'll just tell you to go pound sand.

The correct course of action is to cross out the clause, put your initials next to it, then sign the document. It is the responsibility of the company to have someone review contracts for such things but they never do; they just collect all the documents, check they're signed, and file them away to be forgotten about forever (or until a lawsuit requires they be retrieved).

I've done this at several employers! I even tell the HR people what I'm doing so they can't claim they're being misled. Not once have they ever understood what I was even talking about or even cared. It's because they're HR people; not lawyers. They just "follow the script" as it were.

One woman at HR said that what I did--crossing out the "we own everything you make while you work here plus a year afterwards" clause--was a "very good idea" and just took my documents and filed them away like anyone else's. I even offered alternative language that would be fair along the lines of, "we own everything you make using company resources in your official line of work" but she wasn't interested.

A lot of HN folks make stuff and these invention clauses are completely ridiculous. If you invent a new kind of apple peeler in your garage on a weekend using your own tools it is absolutely unconscionable that your employer who pays you to do programming or management work could claim ownership of that thing. Even if the contract says as such I seriously doubt any court would enforce that unless you worked at a manufacturer of apple peelers.

Re: Contracts you should never sign

#150

Post by xjlin0 »

NhanH wrote: post #140
riskable wrote: post #132

Earlier quoted context omitted.

There's an easy way to solve this problem without non-competes: Treat your employees better . Usually by paying them more . The entire concept of going to work for someone else is that it's supposed to save you a lot of trouble having to sell your services on your own/run your own business. If it has become so much more profitable for doctors to leave and start their own practice then they should be doing that becaus…

Sure, and if a doctor is good enough, he can just start his own practice from the start and never have to sign anything since he never join any practice except his own. That line of reasoning goes both way. If you sign something, then it was worth it for you.

>if a doctor is good enough, he can just start his own practice

It depends. Many instruments, such as PET in nuclear medicine, cost a lot. One have to work for hospitals/networks to help his/her patients with that instruments, no matter how good he/her is.

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