Pushing back against contract demands is scary but please try anyway(blog.plover.com)
blog.plover.com
Pushing back against contract demands is scary but please try anyway
https://blog.plover.com/law/contracts-3.html
181 comments
I'm not a lawyer, and don't know how the first suggestion would work with contracts that say things like "this represents the entire contract, any additions or addendums are void".
If the main portion of the contract says "all additions are invalid", and an addition says "this addition overrides the main contract", which one wins?
If the main portion of the contract says "all additions are invalid", and an addition says "this addition overrides the main contract", which one wins?
This is called an Integration Clause and is meant to basically remove extra outside agreements from being considered, such as an additional verbal agreement not reflected in the contract language itself. Riders are considered part of the contract bell and exist before signing the entire contract, and are covered by the integration clause as part of the whole contract.
> Riders are considered part of the contract bell
Bell?
Bell?
Sorry looks like an autocorrect artifact that I now cannot edit. Please strike the word in your mind as you read the sentence. :)
Too late, the main corpus of a contract is now officially known as the contract bell.
I don't know why I found this so funny, but it gave me a real laugh this evening.
The Language Instinct, in one section, gives some examples of ways in which an English sentence can be ungrammatical that people nevertheless rarely think of when they think about grammatical mistakes.
One of my favorites was "This sentence has cabbage six words". It's accurate! It's... almost well-formed! You have to fix "This sentence has six words" somehow, right?
One of my favorites was "This sentence has cabbage six words". It's accurate! It's... almost well-formed! You have to fix "This sentence has six words" somehow, right?
This sentence has cabbage and seven words.
> This is something up with which we will not put!
to quote the great Churchill, when someone suggested that one should not end a sentence with a preposition.
to quote the great Churchill, when someone suggested that one should not end a sentence with a preposition.
Probably not Churchill:
https://en.wikiquote.org/wiki/Winston_Churchill#Disputed
https://en.wikiquote.org/wiki/Winston_Churchill#Disputed
They have to sign the rider as well. Have a signature block on it. Also, in the signature block on the main contract, hand write in something like "agreed, as modified by the rider." That way you've made it clear that you haven't agreed to the main contract alone.
You obviously can't do this if everything is electronic. You've got to reject electronic-only contracts outright.
You obviously can't do this if everything is electronic. You've got to reject electronic-only contracts outright.
> in the signature block on the main contract, hand write in something like "agreed, as modified by the rider
This seems excessive. Yes, incorporation is a thing. But if you’re getting a rider with a supremacy clause signed at the same time as the main contract, the company is going to have a hell of a time arguing the latter is moot.
This seems excessive. Yes, incorporation is a thing. But if you’re getting a rider with a supremacy clause signed at the same time as the main contract, the company is going to have a hell of a time arguing the latter is moot.
Yeah, but "misplacing" the addendum happens.
Somewhat piggybacking on what someone else said: you should always have a fully executed copy of the entire contract itself, and in the worst case a copy that the employer had signed (which is often enough). “Misplacing” an addendum can be a serious grounds for sanctions, but ideally you have the addendum with your copy and if possible there is additional evidence that there was an addendum, like perhaps contemporaneous notes or emails talking about the addendum.
How so? The only relevant copy of the contract, to you, is your copy. The counterparty can do whatever they want to try to manipulate the situation.
Or go through the DocuSign process but don't sign and download the PDF then add the rider and reupload the modified PDF to your DocuSign for them or just email them.
Docusign lets their customers withhold the ability to download PDFs.
Oh, did not know that. Thank you
Pretty nasty for a regular contract but maybe there are cases where this is ethical...
Pretty nasty for a regular contract but maybe there are cases where this is ethical...
#2 is absolutely great. It's particularly useful to justify limitations of liability.
[deleted]
This feels like a good opportunity to tell (or remind) people that something on a rental lease isn't binding just because you signed it, and signing a lease entitles you to tenant privileges even if the lease does not mention them. I did not know these things before the pandemic, and I think the vast majority of people don't, even landlords themselves.
There is a difference between what is written on the lease, and what can actually be enforced. The lease is not just one giant legal document. It's a series of hundreds or even thousands of individual components.
Let me give you my real-life example:
A few years ago, I signed a lease for a rental in California. Two things (clauses? not sure what the legal term is) in the lease are the key points for my anecdote:
- A lease break fee equal to half a month of rent
- Something about tenants being responsible for any legal fees incurred by the landlord/property owner
I broke my lease, and the half month of rent was taken out of my deposit. I moved out a day early. My landlord had immediately found a new tenant who wanted to move in that day, so it worked out for both of us.
Then my landlord did two things which really upset me and led to me spending ~20 hours over the next month or two reading about real estate laws and consulting multiple lawyers.
- He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit.
- He did not refund my deposit for nearly a month. When he did, it was $150 short of the reduced amount that I had expected. He didn't have an explanation for why, and wouldn't send it.
This led me to lots of googling, and discovery of the following:
1. The idea of a "lease break fee" does not exist in California landlord/tenant laws. It is not legally enforceable. If a lease has one, it doesn't actually mean anything. If I had broken my lease without the landlord's permission, he would not have been entitled to any damages, since he filled the vacancy immediately at an equal or greater monthly rate.
2. Landlords must return a portion of the security deposit within 21 days, with itemizations and deductions. If nothing is returned within 21 days, they must return the full amount, even if deductions are justified. If the matter goes to court, the concept of "treble damages" comes into play. A tenant could get up to 3x their deposit back, depending on how the judge feels (probably a gross oversimplification of small claims, but maybe not).
3. The clause about being responsible for legal fees actually goes both ways. My landlord would have been responsible for my legal fees on top of treble damages if we went to court. There is no way to know this based on just reading the contract, and not having an understanding of laws as they are on the books AND legal precedents for prior similar cases in California.
My landlord did not budge on returning my money when I texted him summaries of the above and links to evidence. He did budge after receiving a letter from a lawyer explaining everything in a more threatening tone.
I was ultimately not out anything but time, since I have a legal plan that I pay for on an annual basis. This was the perfect situation to use it, but it was still more work.
I do want to note something about the legal fees clause. I am pretty sure I am the first tenant who ever pushed back on it to my landlord. I don't know what the term for this is, but that clause has a very strong implication. At first glance, it seems to say "even if you're in the right, if you take me (the landlord) to court, you will have to pay for my lawyer, whether I win or lose".
This is what I thought it meant, and I wonder how many tenants who have been wronged in the past see a clause like that, and it just eliminates any ideas they may have about trying to enforce their tenant rights because they see it as financially impossible.
If I had to pay out of pocket for lawyer consultations and the letter, it wouldn't have really been worth it either. I would have roughly broke even. I would have done it anyways, though. I hope my former landlord will get deposits back to people on time in the future. Though I suppose he might not be willing to let people break their leases anymore, either.
I'm pretty sure he was overcharging on utilities, but I didn't push it at the time. I've been considering reporting him to the IRS because he illegally declared the home as his primary residence while not residing in it, which I found out from the title report. I'm not sure if anything would come out of it. I would bet a limb that he wasn't reporting any of his rental income.
Which leads me to a final thought: leases in California primarily benefit the tenant. You should never be afraid to break one IF the following is true: you know the landlord will be able to fill the vacancy if they put actual effort into it (they will need to prove as such to collect from you if they want to be lazy or spiteful), and the amount of time and money you would potentially spend in the worst case is less than whatever you would be responsible for in a scenario where they don't fill your vacancy, and they convince the judge that they tried really hard and they just couldn't do it (unlikely).
There is a difference between what is written on the lease, and what can actually be enforced. The lease is not just one giant legal document. It's a series of hundreds or even thousands of individual components.
Let me give you my real-life example:
A few years ago, I signed a lease for a rental in California. Two things (clauses? not sure what the legal term is) in the lease are the key points for my anecdote:
- A lease break fee equal to half a month of rent
- Something about tenants being responsible for any legal fees incurred by the landlord/property owner
I broke my lease, and the half month of rent was taken out of my deposit. I moved out a day early. My landlord had immediately found a new tenant who wanted to move in that day, so it worked out for both of us.
Then my landlord did two things which really upset me and led to me spending ~20 hours over the next month or two reading about real estate laws and consulting multiple lawyers.
- He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit.
- He did not refund my deposit for nearly a month. When he did, it was $150 short of the reduced amount that I had expected. He didn't have an explanation for why, and wouldn't send it.
This led me to lots of googling, and discovery of the following:
1. The idea of a "lease break fee" does not exist in California landlord/tenant laws. It is not legally enforceable. If a lease has one, it doesn't actually mean anything. If I had broken my lease without the landlord's permission, he would not have been entitled to any damages, since he filled the vacancy immediately at an equal or greater monthly rate.
2. Landlords must return a portion of the security deposit within 21 days, with itemizations and deductions. If nothing is returned within 21 days, they must return the full amount, even if deductions are justified. If the matter goes to court, the concept of "treble damages" comes into play. A tenant could get up to 3x their deposit back, depending on how the judge feels (probably a gross oversimplification of small claims, but maybe not).
3. The clause about being responsible for legal fees actually goes both ways. My landlord would have been responsible for my legal fees on top of treble damages if we went to court. There is no way to know this based on just reading the contract, and not having an understanding of laws as they are on the books AND legal precedents for prior similar cases in California.
My landlord did not budge on returning my money when I texted him summaries of the above and links to evidence. He did budge after receiving a letter from a lawyer explaining everything in a more threatening tone.
I was ultimately not out anything but time, since I have a legal plan that I pay for on an annual basis. This was the perfect situation to use it, but it was still more work.
I do want to note something about the legal fees clause. I am pretty sure I am the first tenant who ever pushed back on it to my landlord. I don't know what the term for this is, but that clause has a very strong implication. At first glance, it seems to say "even if you're in the right, if you take me (the landlord) to court, you will have to pay for my lawyer, whether I win or lose".
This is what I thought it meant, and I wonder how many tenants who have been wronged in the past see a clause like that, and it just eliminates any ideas they may have about trying to enforce their tenant rights because they see it as financially impossible.
If I had to pay out of pocket for lawyer consultations and the letter, it wouldn't have really been worth it either. I would have roughly broke even. I would have done it anyways, though. I hope my former landlord will get deposits back to people on time in the future. Though I suppose he might not be willing to let people break their leases anymore, either.
I'm pretty sure he was overcharging on utilities, but I didn't push it at the time. I've been considering reporting him to the IRS because he illegally declared the home as his primary residence while not residing in it, which I found out from the title report. I'm not sure if anything would come out of it. I would bet a limb that he wasn't reporting any of his rental income.
Which leads me to a final thought: leases in California primarily benefit the tenant. You should never be afraid to break one IF the following is true: you know the landlord will be able to fill the vacancy if they put actual effort into it (they will need to prove as such to collect from you if they want to be lazy or spiteful), and the amount of time and money you would potentially spend in the worst case is less than whatever you would be responsible for in a scenario where they don't fill your vacancy, and they convince the judge that they tried really hard and they just couldn't do it (unlikely).
> He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit.
That is some combination of organization and willingness to spend time really sweating the details that far exceeds my own.
“What’s in this box?” “Oh, that’s my catalog of burned out light bulbs.” “Why do you have a catalog of burned out lightbulbs?” “Well, I’m not going to live here forever!”
That is some combination of organization and willingness to spend time really sweating the details that far exceeds my own.
“What’s in this box?” “Oh, that’s my catalog of burned out light bulbs.” “Why do you have a catalog of burned out lightbulbs?” “Well, I’m not going to live here forever!”
Hah, my bulbs aren't burned out. They're also not manufactured anymore and would cost $80 to replace based on Amazon and eBay prices. I've had them for close to eight years now and have brought them with me to lots of places.
Didn't you have to maintain an inventory of burned out bulbs for the duration of the lease to pull off the swaparoo here?
Yes, I stuck them in a bathroom drawer. It was "only" four, not an entire home's worth.
What if they bought smart lightbulbs?
I’d want to take those with me.
I’d want to take those with me.
Replacing them with working commodity bulbs seems to be a reasonable middle ground to me.
I've never looked at title reports, but it's fairly common for people to buy a unit, live in it for X years, move out, buy another place and then rent out their old place. I also don't remember about making specific declarations that certain units are my 'primary residence for the year' on my tax return ever. Did the title report say he bought it as a primary residence? Did their original mortgage continue as a 'primary residence mortgage' on the unit. That would make sense then and he wouldn't be doing anything bad AFAIK.
Also as a landlord you don't need a rental unit to be a primary residence anyway, because you can actually deduct way more than just your mortgage interest, and the property taxes I think are deductible as a biz expense that is independent of the $10k personal SALT limit too, so there is no incentive to do stuff like that unless the income was unreported also.
Also as a landlord you don't need a rental unit to be a primary residence anyway, because you can actually deduct way more than just your mortgage interest, and the property taxes I think are deductible as a biz expense that is independent of the $10k personal SALT limit too, so there is no incentive to do stuff like that unless the income was unreported also.
What is the legal plan you have on an annual basis? That sounds like something incredibly useful to have, where can you find one of those and how much do they cost? What do they cover?
Prepaid legal is a whole bucket of worms, usually sold by multilevel marketing type organizations. I'm sure there are some options that aren't a scam, but many are.
Legal plans are good if you don't feel like using Nolo or Rocket yourself and want someone to do it for you. Same as using H&R Block to have someone run TurboTax for you.
I assume the sketchiness is why it is one of the services offered by Toby Jones:
https://www.youtube.com/watch?v=ESJINXeBjhc
https://www.youtube.com/watch?v=ESJINXeBjhc
All lawyers should be required to have a flat fee for “vaguely and specifically threatening letter” heh.
As with everything service related, it depends on the human providing the service.
The subscription (legal plan) brand itself is irrelevant. What all legal plans have is a network of contracted set-rate of fees for lawyers, to the benefit of their members. Not sure if the lawyers themselves get subscription fees or its fee per service, but either way the brand acts like a customer leadgen into pricier products/services.
The hard part is actually finding a good lawyer. Lawyers under the exact same legal plan can be wildly different.
By far the #1 thing to do when using legal plans (via company-provided benefit) is consulting with coworkers about their interaction with a lawyer.
Yelp/google may not be as useful because often they will reflect the feedback of a fee-paying customer
The subscription (legal plan) brand itself is irrelevant. What all legal plans have is a network of contracted set-rate of fees for lawyers, to the benefit of their members. Not sure if the lawyers themselves get subscription fees or its fee per service, but either way the brand acts like a customer leadgen into pricier products/services.
The hard part is actually finding a good lawyer. Lawyers under the exact same legal plan can be wildly different.
By far the #1 thing to do when using legal plans (via company-provided benefit) is consulting with coworkers about their interaction with a lawyer.
Yelp/google may not be as useful because often they will reflect the feedback of a fee-paying customer
Here is an example:
https://www.legalplans.com/
At a previous employer this was one benefit you could sign up for along with health insurance. I never used their services, so I can't say if they are good or bad.
https://www.legalplans.com/
At a previous employer this was one benefit you could sign up for along with health insurance. I never used their services, so I can't say if they are good or bad.
I had one as an employee benefit.
They did a thing that was like a nurse line where you could just chat with an attorney about specific or general items. My plan did stuff like contract/lease review, real estate, traffic tickets, and other stuff.
Several services were included and a bunch of others were an additional, scheduled cost. I believe it cost ~$100/year, with additional (very reasonable) riders for adoption, elder care, etc.
They did a thing that was like a nurse line where you could just chat with an attorney about specific or general items. My plan did stuff like contract/lease review, real estate, traffic tickets, and other stuff.
Several services were included and a bunch of others were an additional, scheduled cost. I believe it cost ~$100/year, with additional (very reasonable) riders for adoption, elder care, etc.
This is true even of things like companies attempting to lay claim on your entire creative output. In most states in the USA court will enforce reasonable work-for-hire terms on work done on company time with company resources, or dealing directly with the company's business while employed with the company -- but any more than that and the contract is at risk of being unenforceable. The term of art in US and Canadian law is "unconscionable" -- the contract is so unreasonable, or was negotiated with such a vast power differential between the parties, that it would be silly and a moral outrage to enforce.
That said, the author of Nginx was sued by his former employer who tried to lay a claim to Nginx itself. So companies can and will pull a fast one -- hire an employment attorney if you are, or are afraid of finding yourself, in this situation.
That said, the author of Nginx was sued by his former employer who tried to lay a claim to Nginx itself. So companies can and will pull a fast one -- hire an employment attorney if you are, or are afraid of finding yourself, in this situation.
I have used tactic #2 successfully to get indemnity clauses removed.
This is great advice. Thank you! I wish I knew this when I was doing the same thing, entered into the death spiral of back and forth over the contract language....
This sounds like great advice. Thank you for the ideas!
I’m not certain my experience is relevant in this context, but I’ve been fighting contract language for over 30 years. I’m a pro photographer and producer in the biz for many years. I produce unique content that is quite challenging to recreate.
So many contracts contain what I call “rights grabs”. They are attempting to transfer my IP to them for maximum profit. I’ve fought this trend with success for decades.
I simply cross out the offending language in the contract and make the license contingent on the agreement proceeding as I describe. I’m happy to abandon a contract if it does not go my way (a luxury not everyone has).
My largest checks in the past two years have been from lawsuits brought against copyright infringement. In every case my contract revisions have withstood legal challenge and the defenders/offenders have folded when they proceeded as if the original contract language (before I altered, after they signed) stood.
There are lawyers who have pursued this niche to great success and I have lawyer team ready to pursue infringement on a contingency basis. It is quite amazing.
More than once now, my lawyers have fought for years when the infringers had deep pockets and a terror of precedent. They paid so many thousands to their legal team but lost. I have prevailed in every case.
I recognize this is bragging. But so many of my colleagues have just signed for a short term check while losing in the long run. I might be an obstinate fool, but so far it’s paid off.
We in the photo biz have had to survive a huge paradigm shift in the biz model in the last 18 years. But so many people fold for Pennie’s. “I need this $250 right now to make rent”. But my settlement checks are in the $25,000 range typically (25% after my lawyers and agent get their cut).
Last I looked, the average income for a photographer in the U.S, was around $7500 a year. Yes, $7500 (no missing zeros). I make six figures consistently and I’m damn proud of this fact.
Most of the conversations on this forum are above my skill set, but you folks are generally paid for deep knowledge and rare skills. Don’t let anyone steal this from you.
So many contracts contain what I call “rights grabs”. They are attempting to transfer my IP to them for maximum profit. I’ve fought this trend with success for decades.
I simply cross out the offending language in the contract and make the license contingent on the agreement proceeding as I describe. I’m happy to abandon a contract if it does not go my way (a luxury not everyone has).
My largest checks in the past two years have been from lawsuits brought against copyright infringement. In every case my contract revisions have withstood legal challenge and the defenders/offenders have folded when they proceeded as if the original contract language (before I altered, after they signed) stood.
There are lawyers who have pursued this niche to great success and I have lawyer team ready to pursue infringement on a contingency basis. It is quite amazing.
More than once now, my lawyers have fought for years when the infringers had deep pockets and a terror of precedent. They paid so many thousands to their legal team but lost. I have prevailed in every case.
I recognize this is bragging. But so many of my colleagues have just signed for a short term check while losing in the long run. I might be an obstinate fool, but so far it’s paid off.
We in the photo biz have had to survive a huge paradigm shift in the biz model in the last 18 years. But so many people fold for Pennie’s. “I need this $250 right now to make rent”. But my settlement checks are in the $25,000 range typically (25% after my lawyers and agent get their cut).
Last I looked, the average income for a photographer in the U.S, was around $7500 a year. Yes, $7500 (no missing zeros). I make six figures consistently and I’m damn proud of this fact.
Most of the conversations on this forum are above my skill set, but you folks are generally paid for deep knowledge and rare skills. Don’t let anyone steal this from you.
> Most of the conversations on this forum are above my skill set
Just a different type. Interesting insight.
Just a different type. Interesting insight.
> I recognize this is bragging
Funny, I don't. Seems to me you are inspiring others by sharing your track record and the care and struggles you took to pull it off.
And you present it with respect for the skills and experiences of others.
Funny, I don't. Seems to me you are inspiring others by sharing your track record and the care and struggles you took to pull it off.
And you present it with respect for the skills and experiences of others.
I'm sure you are right about what you said, but the whole tone and field of photography reminded me of a photograph we hired.
He imagined himself as such a great artist that although doing work for hire was afraid we might use our personal family photos without giving him credit.
In the end... he sent another team to do our photographs and wouldn't even give the ~20 "edited" photographs except as a flash EXE.
I'm a programmer and I know what copyright is but that photographer was deluded.
He imagined himself as such a great artist that although doing work for hire was afraid we might use our personal family photos without giving him credit.
In the end... he sent another team to do our photographs and wouldn't even give the ~20 "edited" photographs except as a flash EXE.
I'm a programmer and I know what copyright is but that photographer was deluded.
And that’s why I love HN. Thanks for the interesting insight.
Oh yeah. You know what? I am not big into copyright so much as patents (turned my back on a model/actor career, also big into copyright with one specific algorithm though, where it made perfect sense) and Intellectual Property. Hey can you leave your email in your profile and I'll write you? Super interested in the hard-lawyering-up angle for Intellectual Property. I guess what you're saying about a big cut for lawyers and agents. I think my agent cost 25% too.
Let's talk about "unlimited PTO" -- I'm seeing more of this in my half-hearted job search and I'm really wary about it. I'd like to get my prospective employer to agree in writing to a certain number of days that would be considered normal/acceptable PTO, so I don't a) feel guilty for taking that amount and b) get shafted in performance assessments for taking a normal amount.
Has anybody had any luck getting a prospective employer who advertises "unlimited PTO" to do this in contract negotiation phase? Basically I don't want to just rely on the goodwill of said new employer to treat me respectfully for taking a good chunk of said PTO, and I want to define what is reasonable expectations up-front.
Has anybody had any luck getting a prospective employer who advertises "unlimited PTO" to do this in contract negotiation phase? Basically I don't want to just rely on the goodwill of said new employer to treat me respectfully for taking a good chunk of said PTO, and I want to define what is reasonable expectations up-front.
This is a good idea. I've had two employers with "unlimited PTO". One of them explicitly set an expectation that I was expected to take at least 4 weeks per year. And it wasn't in writing, but everyone was told this, so there's "witnesses" which is better than nothing. This actually worked really well, and everyone seemed to take an appropriate amount of time, but no one was explicitly keeping track or expecting you to fill out paperwork just to take a break.
Another employer said you needed to talk to your manager and justify time off with regards to results, and the timing of your break, relative to releases, etc. In this scenario I hardly took any time off, but folks who clearly didn't care about their manager took SO MUCH. Learn from me, though: they never gave me the promotion I was chasing anyway.
Another employer said you needed to talk to your manager and justify time off with regards to results, and the timing of your break, relative to releases, etc. In this scenario I hardly took any time off, but folks who clearly didn't care about their manager took SO MUCH. Learn from me, though: they never gave me the promotion I was chasing anyway.
One of them explicitly set an expectation that I was expected to take at least 4 weeks per year.
That's interesting. In my state, you are owed accrued unused vacation time on your departure. One of the biggest reasons for going "unlimited PTO" is that there's no accrual, therefore they owe you nothing.
Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
That's interesting. In my state, you are owed accrued unused vacation time on your departure. One of the biggest reasons for going "unlimited PTO" is that there's no accrual, therefore they owe you nothing.
Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
> One of the biggest reasons for going "unlimited PTO" is that there's no accrual, therefore they owe you nothing.
IMO that's the only reason for employers to offer "unlimited PTO" schemes.
> Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
Hmm, at my most recent employer, I heard passdown from my manager that "the man above" (VP) had "guided" that 5 weeks was the ceiling for "unlimited" and that TPTB would look askance at anyone taking more. But this was all "off the record".
IMO that's the only reason for employers to offer "unlimited PTO" schemes.
> Does explicitly saying "4 weeks" put them back in the hook for that, or does saying "expect" get them back off the hook again?
Hmm, at my most recent employer, I heard passdown from my manager that "the man above" (VP) had "guided" that 5 weeks was the ceiling for "unlimited" and that TPTB would look askance at anyone taking more. But this was all "off the record".
IMO that's the only reason for employers to offer "unlimited PTO" schemes.
A lot of companies also have continual headaches about requests for unused time to roll over into the next fiscal year. So not only is the accrual a problem in regards to terminated employees but it's a debt on the books that has to be tracked and serviced.
My fun story about that is the large company I worked for a couple of decades ago - they still had a policy that allowed you to bank up to a year's worth of vacation time. After a few employees decided to retire a year early by taking a 52-week vacation and then retiring, the whole policy was trashed.
Imagine having a coworker retire and you can't fill the headcount for an entire year because they're still an active employee.
A lot of companies also have continual headaches about requests for unused time to roll over into the next fiscal year. So not only is the accrual a problem in regards to terminated employees but it's a debt on the books that has to be tracked and serviced.
My fun story about that is the large company I worked for a couple of decades ago - they still had a policy that allowed you to bank up to a year's worth of vacation time. After a few employees decided to retire a year early by taking a 52-week vacation and then retiring, the whole policy was trashed.
Imagine having a coworker retire and you can't fill the headcount for an entire year because they're still an active employee.
They could fill the headcount. It’s another dumb policy that prevent them from filling it.
Works needs to be done and there’s no one to do it, the fact you can’t hire is a problem.
Works needs to be done and there’s no one to do it, the fact you can’t hire is a problem.
> you can't fill the headcount for an entire year
Why couldn't you?
Why couldn't you?
Because, as mentioned above, this was an old-school company. Departments had budgets, and your labor budget was fixed and pretty much determined how many people you could have.
That retiree on 'vacation' was drawing a paycheck and was still part of your yearly budget. Asking for a replacement meant increasing the budget by that extra person's salary, and that was a bureaucratic problem.
Oh, and here's the fun conclusion to the story I forgot to mention. When the policy was cancelled and rollover was taken away, every employee got paid a one-time lump sum for their accrued rollover time. Some people got 30-40 weeks of pay in a single check. And that launched many employees into a higher tax bracket for that year. Lots of fun all around.
That retiree on 'vacation' was drawing a paycheck and was still part of your yearly budget. Asking for a replacement meant increasing the budget by that extra person's salary, and that was a bureaucratic problem.
Oh, and here's the fun conclusion to the story I forgot to mention. When the policy was cancelled and rollover was taken away, every employee got paid a one-time lump sum for their accrued rollover time. Some people got 30-40 weeks of pay in a single check. And that launched many employees into a higher tax bracket for that year. Lots of fun all around.
> unlimited
> up to 5 weeks
This seems surreal to me, given that here (Germany) that is just above the legal minimum and every decent job gives 25-30 days. If someone offered "unlimited" here, I'd expect at least 40-50 days to be acceptable.
This seems surreal to me, given that here (Germany) that is just above the legal minimum and every decent job gives 25-30 days. If someone offered "unlimited" here, I'd expect at least 40-50 days to be acceptable.
Legal minimum for salaried work in Canada is 2 weeks I believe, and I doubt there's a minimum at all in the US.
Google Canada capped us out at 5 weeks and that was after years of lobbying. But we could take copious unpaid time, and we were well paid, so.
Google Canada capped us out at 5 weeks and that was after years of lobbying. But we could take copious unpaid time, and we were well paid, so.
I got 40 last year. talking with people, I understood that this is an acceptable amount. on the high side, but acceptable.
>> One of the biggest reasons for going "unlimited PTO" is that there's no accrual, therefore they owe you nothing.
> IMO that's the only reason for employers to offer "unlimited PTO" schemes.
I think that's generally true, but at my company (which is a very small startup of about a dozen people) we have unlimited PTO because we just really don't want to bother with tracking it.
I think that's generally true, but at my company (which is a very small startup of about a dozen people) we have unlimited PTO because we just really don't want to bother with tracking it.
Yeah, that’s a lie people tell themselves. If someone was gone for 2 months, suddenly someone would start counting and tracking. But nobody does because of course, it’s not truly unlimited.
I have had two separate unlimited PTO jobs where I was gone on an extended vacation for ~2 months and no one batted an eye. The time off was discussed beforehand of course, I didn’t just not show up one day. But I got no complaints from anyone about it, just people asking to see photos from my trip.
Pretty sure I'm not lying to myself, thanks.
Where I am, only five days roll over, and PTO is accrued over a year. I think that if I were to quit in January, I would get a very small payout for my un-used PTO days.
I would much rather work somewhere with unlimited PTO, and not have to nickel-and-dime my vacation time. (Although, yes, this assumes that I'm lucky enough to work at a place that doesn't abuse the unlimited PTO promise.)
I would much rather work somewhere with unlimited PTO, and not have to nickel-and-dime my vacation time. (Although, yes, this assumes that I'm lucky enough to work at a place that doesn't abuse the unlimited PTO promise.)
Frankly, over my 20 year career, I've learned the best way to get promotions is to switch jobs.
The hook strategy works great in the beginning of a career.
My experience later on is once you want Director or VP level roles at a noteworthy company, prospective employers are only keen to hire you at whatever level you've actually achieved. The jump from Senior Engineer to Tech Lead is orders of magnitude easier, totally doable by bailing to the next gig.
My experience later on is once you want Director or VP level roles at a noteworthy company, prospective employers are only keen to hire you at whatever level you've actually achieved. The jump from Senior Engineer to Tech Lead is orders of magnitude easier, totally doable by bailing to the next gig.
Absolutely agreed. There is generally no way to get your current company to understand your worth to them. You're in the "friend zone" with your employer.
I worked at a YC startup with unlimited time off. They worked us like dogs, but even they honored the "unlimited" part of that clause. Some people took many weeks of vacation a year without any punishment or judgment I could identify.
In fact, I've heard about "unlimited vacation" being a trap at companies, but have never seen that actually happen at any of the companies I've worked at which had unlimited PTO as a benefit (n=2, mind you).
On the other hand, I find that I myself do not take much vacation unless there is a "PTO economy" I am trying to game. If you tell me I have unlimited vacation days, I will take maybe 2 weeks a year off, mostly around the holidays. Knowing that I could take more time off seems to be enough to keep me from burning out.
On the other hand, if you tell me I have 4 weeks a year off, and I lose any unused days at the end of the year, I will take exactly 4 weeks every year off, like clockwork.
So, for me, I think that having a set number of days a year is better over all, as it paradoxically encourages me to take more vacation. /anecdotal.
In fact, I've heard about "unlimited vacation" being a trap at companies, but have never seen that actually happen at any of the companies I've worked at which had unlimited PTO as a benefit (n=2, mind you).
On the other hand, I find that I myself do not take much vacation unless there is a "PTO economy" I am trying to game. If you tell me I have unlimited vacation days, I will take maybe 2 weeks a year off, mostly around the holidays. Knowing that I could take more time off seems to be enough to keep me from burning out.
On the other hand, if you tell me I have 4 weeks a year off, and I lose any unused days at the end of the year, I will take exactly 4 weeks every year off, like clockwork.
So, for me, I think that having a set number of days a year is better over all, as it paradoxically encourages me to take more vacation. /anecdotal.
n=4 for me, but I’ve had the same experience. Unlimited really has meant unlimited. And I take advantage of it, taking maybe 4-6 weeks per year average. But twice I’ve taken a single 6-8 week international vacation in the summer with no complaints whatsoever (and that in addition to other time off during those years). I really do think it’s entirely dependent on the company you’re at, but unlimited PTO isn’t universally a scam.
This isn't contractual, but I always ask "so, how many days did you take last year" or "how many days does the leadership team take" or "how many days does the team take on average".
Give me a feel for what I'm walking into.
I don't know if a company with unlimited PTO would put it in a contract, because that might put them on the hook for a payout for unused vacation when you leave. IANAL.
Give me a feel for what I'm walking into.
I don't know if a company with unlimited PTO would put it in a contract, because that might put them on the hook for a payout for unused vacation when you leave. IANAL.
In some countries like Canada you have to pay out unused vacation regardless, its the law.
Well, that's the other thing. I'm in Ontario, and I'm not even 100% sure on the legality of "unlimited PTO" here.
Presumably it's basically, legally, no contractual paid PTO but then they let you take PTO anyways? Because if they put N days in writing, well, then it's just the same as always. A liability on their books, etc.
Presumably it's basically, legally, no contractual paid PTO but then they let you take PTO anyways? Because if they put N days in writing, well, then it's just the same as always. A liability on their books, etc.
Yes, that is usually the motivation for not specifying vacation time. People mostly don't take vacation not allotted.
> In some countries like Canada you have to pay out unused vacation regardless, its the law.
But this is a totally incoherent statement. The company offers unlimited PTO. When you leave, they have to pay you an infinite amount of money? That obviously is not the law, no matter how much you say it's the law.
But this is a totally incoherent statement. The company offers unlimited PTO. When you leave, they have to pay you an infinite amount of money? That obviously is not the law, no matter how much you say it's the law.
In the UK there is a statutory minimum of 21 days holiday. If you quit or are fired from a company with an unlimited PTO policy and haven’t yet used your statutory minimum (calculated pro rata) you will be paid for those extra days in your final salary payment.
Could be that not having a set number of days avoids the payout, as I believe is the case in the US. Another charitable interpretation of their comment might be “Unlimited PTO is at odds with Canadian law, so potentially could be illegal.“
It helps to understand what employers are looking for when they advertise unlimited PTO. In many cases it's because they don't want to accumulate liability on the books for unused PTO/sick time, which they then have to pay out if you leave. They are less concerned about how much you take. (That's true for my company, certainly.)
So it's perfectly reasonable to ask for clarification about how much time off is reasonable, what are the terms for approval, etc. A decent employer will be glad to explain their policies and even put them in writing if they have not already.
So it's perfectly reasonable to ask for clarification about how much time off is reasonable, what are the terms for approval, etc. A decent employer will be glad to explain their policies and even put them in writing if they have not already.
I’ve often got the impression that unlimited PTO is really a tool to get workers to forget that they have promised time off. When PTO is a scarce resource, workers plan ahead to use what’s available. Without knowing how much you have, you’re left to plan abstractly, trying to navigate the question of “am I overstepping my boundaries by asking for this much time off?” Thus you take less time.
I think it is more to avoid having to pay out accrued vacation time when an employee leaves.
It’s both. There’s literally no downside for the employer. Someone who abuses it is underperforming. You just fire them if it becomes a problem.
That's an advantage of it, but I sort of expect it wouldn't be that popular with companies if it lead to people taking significantly more time off.
California labor law regarding vacation time is relatively generous compared to other states, that's probably another part of it (my state allows use it or lose it, for example).
California labor law regarding vacation time is relatively generous compared to other states, that's probably another part of it (my state allows use it or lose it, for example).
Works out to the same thing. They get more work time from the employee for the money they spend.
An amusing thing comes to mind. The example in the article was about a clause that, if taken literally, would hurt the employee. In this case it seems to be the opposite (putting aside the concerns you bring up, which I share). Technically you could just give proper notice for a vacation after 2 weeks at the job and never return.
I don't know where to go with that, it's just funny.
I don't know where to go with that, it's just funny.
Yeah, I mean, it's pretty clear that "unlimited PTO" is... not. It leaves judgement in the employers hands, rather than in a written agreement.
Seems to me it's a way of removing contractual obligations for PTO from the employment agreement and turning them into something that is fundamentally at the whim of the employer. While it's saying "you can take as much as you want", it also does not contractually enshrine anything, and there's nothing on the books to pay out at termination time, either.
Seems to me it's a way of removing contractual obligations for PTO from the employment agreement and turning them into something that is fundamentally at the whim of the employer. While it's saying "you can take as much as you want", it also does not contractually enshrine anything, and there's nothing on the books to pay out at termination time, either.
Just say you are going on an unlimited vacation with your unlimited pto.
It's telling that you don't tend to see this in Europe, where leave is more generous and people actually take it. (Typically around 6 weeks, including public holidays).
Yeah it's pretty foreign here in Canada, too. A Silicon Valley import. Prospective employer (US-ian) seems to be doing this, though. But it remains to be seen what they'll do for an offer to a Canadian. Guess I'll find out.
Before I quit Google I had 5 weeks PTO + a whole pile of unpaid "flex" days if I wanted them. It could get hard to use all 5 weeks sometimes.
Before I quit Google I had 5 weeks PTO + a whole pile of unpaid "flex" days if I wanted them. It could get hard to use all 5 weeks sometimes.
Our bay area company considered unlimited until employees pushed back. The standard was 5 weeks PTO plus 5 bonus weeks ever 5 years (so ~6 weeks per year average). People realized it was far better to have a solid number than "unlimited".
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I’ve seen the ambiguity in “unlimited PTO” as well. At $job we’re starting to talk about “mandatory minimum PTO” instead. Everyone’s required to take at least one contiguous week every quarter, and hopefully more besides.
At other gigs I’ve seen the same things you fear, where “unlimited” means “as little as possible.”
At other gigs I’ve seen the same things you fear, where “unlimited” means “as little as possible.”
>b) get shafted in performance assessments for taking a normal amount
I suspect a contractual guarantee isn't going to protect much from that. If you're taking 4 weeks but everyone else on your team is taking 2, there's going to be an impression that you're less "hard working" (warranted or not) than everyone else. However, if you get passed up for a promotion it's going to be hard to prove that was the reason behind it.
edit: the mandatory minimum that the sibling comment talks about fixes this.
I suspect a contractual guarantee isn't going to protect much from that. If you're taking 4 weeks but everyone else on your team is taking 2, there's going to be an impression that you're less "hard working" (warranted or not) than everyone else. However, if you get passed up for a promotion it's going to be hard to prove that was the reason behind it.
edit: the mandatory minimum that the sibling comment talks about fixes this.
A lot of places have a "mandatory minimum" and that might be the phrase to ask about.
I wouldn't index on this too much. I've worked for companies with unlimited PTO where I took 6-8 weeks a year while still getting stellar performance reviews and companies with a fairly generous fixed number of accrued vacation days where people rarely took off and performance was all about your impact with no consideration for vacation used.
The only thing you can count on is if you live in a state that requires payouts for unused vacation, you'll at least get more money if you don't take vacation.
The only thing you can count on is if you live in a state that requires payouts for unused vacation, you'll at least get more money if you don't take vacation.
> Let's talk about "unlimited PTO"
I refuse that outright and demand unlimited unpaid time off.
I refuse that outright and demand unlimited unpaid time off.
I travelled a fair distance to sign a contract with a third-party that I was contracting though for a major bank. They handed me a bunch of documents to sign and left me in a room for a while, I read them all thoroughly (took hours) and flagged up several things that were just plain wrong, stuff that made no sense and, similar to the OP, some clauses that suggested they wanted my first-born.
They were happy to change the details to fit what I wanted and we all went away happy. The thing that surprised me was when their intiial response was, "No-one has ever mentioned these before and we've been using these for years". I mean, the wording of the contracts could have gone very badly for me if things had gone south and we ended up in court.
Kind of makes me wonder if anyone actually bothers to read what they are signing.
They were happy to change the details to fit what I wanted and we all went away happy. The thing that surprised me was when their intiial response was, "No-one has ever mentioned these before and we've been using these for years". I mean, the wording of the contracts could have gone very badly for me if things had gone south and we ended up in court.
Kind of makes me wonder if anyone actually bothers to read what they are signing.
A sand volleyball venue in my city has a waiver that you have to sign to play in a league there. In the contract you have to agree that you won't own or operate a volleyball related business within a 30+ mile radius for three years.
I signed since I don't plan to open a volleyball business, but I raised it with the venue owner who basically said their lawyers suggested it and that only one other person objected to it over the last three years. He was willing to strike it out.
Anyway - people/businesses with clauses like this need feedback or they won't change it. I let the sand volleyball place know that I thought it was a scummy tactic, and that pushing something like that onto the rank and file patrons of a business is not appropriate for someone who chairs the community improvement district that the business is located in.
My takeaway was also that the vast majority of people just don't read what they sign.
I signed since I don't plan to open a volleyball business, but I raised it with the venue owner who basically said their lawyers suggested it and that only one other person objected to it over the last three years. He was willing to strike it out.
Anyway - people/businesses with clauses like this need feedback or they won't change it. I let the sand volleyball place know that I thought it was a scummy tactic, and that pushing something like that onto the rank and file patrons of a business is not appropriate for someone who chairs the community improvement district that the business is located in.
My takeaway was also that the vast majority of people just don't read what they sign.
I doubt that term was enforceable anyway.
Random things don’t become real just because they’re written down. Contracts have to represent “a meeting of the minds” and there has to be adequate consideration (expensive asks should be paid for). Slipping an uncompensated noncompete clause into a sports liability waiver has a low chance of satisfying either principle.
Random things don’t become real just because they’re written down. Contracts have to represent “a meeting of the minds” and there has to be adequate consideration (expensive asks should be paid for). Slipping an uncompensated noncompete clause into a sports liability waiver has a low chance of satisfying either principle.
Yes, this was my thought as well. The beginning of the waiver read something like "In consideration of the services received from COMPANY NAME, ..." and my immediate reaction was "I'm the one paying you here, not the other way around." The owner is a real estate attorney so I'm sure he's not oblivious either.
> Kind of makes me wonder if anyone actually bothers to read what they are signing.
Nope, not typically, in my experience. I'm one of the folks who does, and it usually catches the other folks by surprise.
I signed a contract for a blog post I was writing and in the contract it said I couldn't mention that I was working with said company. But they were going to put my name on the blog post? I asked the person who sent me the contract, "should I not share this blog post?".
They changed the contract with no issues, but it showed me that they were just using a standard contract that no one ever bothered to read.
Nope, not typically, in my experience. I'm one of the folks who does, and it usually catches the other folks by surprise.
I signed a contract for a blog post I was writing and in the contract it said I couldn't mention that I was working with said company. But they were going to put my name on the blog post? I asked the person who sent me the contract, "should I not share this blog post?".
They changed the contract with no issues, but it showed me that they were just using a standard contract that no one ever bothered to read.
> Kind of makes me wonder if anyone actually bothers to read what they are signing.
A lot of times, no. It happens to me even. I’m not a lawyer and I’m asked to sign contracts written by lawyers for other lawyers. I’ma reasonably smart guy and I can usually put two and two together in a contract, but often it’s written in a way that simply very difficult for me to understand and I can’t really tell what the contact is saying.
It’s a burden. If the stakes are small I might just sign it. Otherwise I might ask for clarification but most times you’re asked to sign something it’s assumed you’ll just take a minute to sign it so now you’ve thrown everything off.
I understand why contacts need precise language but I think it’s a bit unfair to expect lay people to sign contracts without a lawyer present much of the time.
A lot of times, no. It happens to me even. I’m not a lawyer and I’m asked to sign contracts written by lawyers for other lawyers. I’ma reasonably smart guy and I can usually put two and two together in a contract, but often it’s written in a way that simply very difficult for me to understand and I can’t really tell what the contact is saying.
It’s a burden. If the stakes are small I might just sign it. Otherwise I might ask for clarification but most times you’re asked to sign something it’s assumed you’ll just take a minute to sign it so now you’ve thrown everything off.
I understand why contacts need precise language but I think it’s a bit unfair to expect lay people to sign contracts without a lawyer present much of the time.
> often it’s written in a way that simply very difficult for me to understand and I can’t really tell what the contact is saying.
My experience is that contracts are easy to read - much easier than code. For one thing, contracts are written to be completely unambiguous to a human (a judge), a goal which few coders attempt.
The challenge is knowing and applying what isn't in the contract: The outcome depends on the contract & the law & the court. The latter two apply many rules, many of which are complex or require judgment, and many also require anticipating how a judge might rule. You can write whatever you want in a contract - 'if Employee leaves Employer less than 10 years from the date this contract is signed, Employee must amputate Employee's left leg.' (And the last sentence brings demonstrates first point about the importance of non-ambiguity: If it said '... their left leg', whose leg is it?)
My experience is that contracts are easy to read - much easier than code. For one thing, contracts are written to be completely unambiguous to a human (a judge), a goal which few coders attempt.
The challenge is knowing and applying what isn't in the contract: The outcome depends on the contract & the law & the court. The latter two apply many rules, many of which are complex or require judgment, and many also require anticipating how a judge might rule. You can write whatever you want in a contract - 'if Employee leaves Employer less than 10 years from the date this contract is signed, Employee must amputate Employee's left leg.' (And the last sentence brings demonstrates first point about the importance of non-ambiguity: If it said '... their left leg', whose leg is it?)
> Kind of makes me wonder if anyone actually bothers to read what they are signing.
Generally, no. Everyone always expresses real surprise when I actually read a contract before signing. Usually, I just end up signing because there's not often room for negotiation, and I want to do the thing that requires the contract, and whatever, but I'd rather know. I've gotten some contracts changed, but often it's not worth the effort, IMHO.
Generally, no. Everyone always expresses real surprise when I actually read a contract before signing. Usually, I just end up signing because there's not often room for negotiation, and I want to do the thing that requires the contract, and whatever, but I'd rather know. I've gotten some contracts changed, but often it's not worth the effort, IMHO.
> Kind of makes me wonder if anyone actually bothers to read what they are signing.
I was in the military reserves, and one of the training weekends there was some thing they needed everyone to sign; I forget what it was, just something to make sure we were all aware of some random change in policy. I skimmed through the thing they asked us to sign, and one of the lines said, "I have received a pamphlet regarding $TOPIC." So I said, "Where are the pamphlets?" The admin person gave me a blank look and said, "What pamphlet?" I pointed to the text and said, "I'm signing to attest that I've received a pamphlet; I just wondered where it was."
I wasn't trying to rock the boat or make a big deal out of it, but generally if I sign something saying "I have received X" I want to have actually received X. Apparently I was the only person in the unit of 100+ people, including the admin staff, who actually read what they were signing.
I was in the military reserves, and one of the training weekends there was some thing they needed everyone to sign; I forget what it was, just something to make sure we were all aware of some random change in policy. I skimmed through the thing they asked us to sign, and one of the lines said, "I have received a pamphlet regarding $TOPIC." So I said, "Where are the pamphlets?" The admin person gave me a blank look and said, "What pamphlet?" I pointed to the text and said, "I'm signing to attest that I've received a pamphlet; I just wondered where it was."
I wasn't trying to rock the boat or make a big deal out of it, but generally if I sign something saying "I have received X" I want to have actually received X. Apparently I was the only person in the unit of 100+ people, including the admin staff, who actually read what they were signing.
[deleted]
This makes me wonder about having an app on the phone that reads the contract and does this flagging for you
To really fix the problem, you’d need two more apps:
http://www.threepanelsoul.com/comic/organization
http://www.threepanelsoul.com/comic/organization
I don’t really get the response here.
OCR the contract text and reveal the meaning of the clauses and how common they are. Flagging for further review.
iOS already does OCR on all images now, just no comparative analysis.
Not exactly farfetched, could save everyone time, could be baked into the OS, nothing for indie devs to salivate over.
OCR the contract text and reveal the meaning of the clauses and how common they are. Flagging for further review.
iOS already does OCR on all images now, just no comparative analysis.
Not exactly farfetched, could save everyone time, could be baked into the OS, nothing for indie devs to salivate over.
> I don’t really get the response here.
A reasonable response to the problem of “companies are trying to push dubious clauses in employment contracts” would be “make those dubious practices illegal and/or unenforceable”, or maybe “make obfuscated or hard-to-read contracts illegal and/or unenforceable”. Your response was instead, as in the linked comic strip, “let’s make an app to fix it!”.
A reasonable response to the problem of “companies are trying to push dubious clauses in employment contracts” would be “make those dubious practices illegal and/or unenforceable”, or maybe “make obfuscated or hard-to-read contracts illegal and/or unenforceable”. Your response was instead, as in the linked comic strip, “let’s make an app to fix it!”.
But many clauses are already illegal and unenforceable
I’ll sign a contract in California that contains a noncompete clause because I’m completely ignoring it, for example
Interesting we are just operating on different information to reach different conclusions
Mine is about empowering an individual as the other parts have either already happened or never will happen
I’ll sign a contract in California that contains a noncompete clause because I’m completely ignoring it, for example
Interesting we are just operating on different information to reach different conclusions
Mine is about empowering an individual as the other parts have either already happened or never will happen
Empowering individuals to solve societal problems rarely work, IMHO. Giving people guns doesn’t solve the crime problem; improving society to have less desperately poor people and drug addicts does. Giving people the ability to read and right to refuse contracts doesn’t give people better working conditions, empowering government and/or unions to enforce better conditions does. Building larger and more tank-like cars does not improve traffic safety; lowering and enforcing speed limits and seat belt laws does. Being conscious about your personal carbon footprint will not solve the climate crisis. Et cetera.
> If the employer is a good one, they want the contract to be fair, and if the contract is unfair it's probably by accident.
This definitely sounds about right -- I'm pretty sure most places I worked and most other Y Combinator companies in my batch just took the standard forms from somewhere (e.g., the Orrick forms library) and used them, without thinking too much about the terms. [1]
If there's something in the terms that actually seem objectionable, it's likely the hiring manager, recruiter, and other people in your recruiting process have never thought about it either. By pointing it out, you're often educating them too on what the offer letter says, and providing valuable feedback for the recruiting process.
[1] https://www.orrick.com/en/Total-Access/Tool-Kit/Start-Up-For...
This definitely sounds about right -- I'm pretty sure most places I worked and most other Y Combinator companies in my batch just took the standard forms from somewhere (e.g., the Orrick forms library) and used them, without thinking too much about the terms. [1]
If there's something in the terms that actually seem objectionable, it's likely the hiring manager, recruiter, and other people in your recruiting process have never thought about it either. By pointing it out, you're often educating them too on what the offer letter says, and providing valuable feedback for the recruiting process.
[1] https://www.orrick.com/en/Total-Access/Tool-Kit/Start-Up-For...
So, it's a bug and counter-party are testers?
Also, good contracts are difficult to write. There are templates for most contract types but it can take a while to work out the kinks. IP clauses around open source, for example, are incredibly hard to get right. We've had multiple iterations on this topic at my company.
Yeah, that's pretty much it -- usually nobody stress-tested this before they just sent it out in a rush to employee #1, who's probably a referral anyways
In 2000/2001 I was offered a position at a startup who was looking to make it big in the intrusion detection and prevention space.
They handed me a contract with an IP clause that summed up to their owned any idea I came up with. This wasn't uncommon at the time, but it was more aggressive than I was used to. I made it clear to the HR person that I was actively contributing to open source tools at the time, such as snort, nessus, and also had ideas of my own that I was already working on.
The HR person made it clear that if I were to continue working on these ideas it would become property of the company -- Even if performed during my free time.
I don't remember the specifics any more, but after some discussion and escalations we came to the agreement that since my hobbies were so close to my work function that any new ideas I came up with were property of the company, so I was asked to provide a list of what I was working on and it would be amended to the contract. I provided a 4 page outline of the 4 projects I was working on and their what intellectual property they involved.
The the next day they rescinded the offer. At the time I had assumed it was because their ideas were not that novel and they wanted fresh ideas to take and profit off of. Will never know for sure, but they went out of business between 2001/2002.
Regardless how right I was, since then I was always a lot more aware of IP clauses in contracts and how they were phrased. I also try not to work for companies who sell security software.
They handed me a contract with an IP clause that summed up to their owned any idea I came up with. This wasn't uncommon at the time, but it was more aggressive than I was used to. I made it clear to the HR person that I was actively contributing to open source tools at the time, such as snort, nessus, and also had ideas of my own that I was already working on.
The HR person made it clear that if I were to continue working on these ideas it would become property of the company -- Even if performed during my free time.
I don't remember the specifics any more, but after some discussion and escalations we came to the agreement that since my hobbies were so close to my work function that any new ideas I came up with were property of the company, so I was asked to provide a list of what I was working on and it would be amended to the contract. I provided a 4 page outline of the 4 projects I was working on and their what intellectual property they involved.
The the next day they rescinded the offer. At the time I had assumed it was because their ideas were not that novel and they wanted fresh ideas to take and profit off of. Will never know for sure, but they went out of business between 2001/2002.
Regardless how right I was, since then I was always a lot more aware of IP clauses in contracts and how they were phrased. I also try not to work for companies who sell security software.
I've been pushing back against these IP ownership clauses for years, although the last couple of years they seem to have gotten much less common. Generally, most companies I've talked to have been very happy to make a change to the contract, but you have to explicitly ask them to do it. If you simply bring up that there's a problem with the contract, most recruiters and hiring managers default to empathy-but-inaction. I think that it doesn't really occur to people that you _can_ change the contract unless you specifically ask about it.
I also think it's helpful to realize that for a lot of companies, they are pretty happy to change an employment contract, you can make the process a lot nicer for everyone if you given them a heads up early in the process that you intend to review the documents and might ask for changes. Most recruiters I've worked with have been happy to send over all of the standard documents well ahead of a final offer so that I have time to review them, and it gives them a chance to get changes made before you actually sit down to fill out the final versions of all of the paperwork (but still review the version you are actually signing).
I will say that while my experiences negotiating these things have generally been good, I've also specifically avoided larger companies that have a reputation for overreaching IP ownership clauses. If a startup has an overly broad ownership clause, it's quite likely that they are just using a form contract and didn't think too much about it. If large company with thousands of developers has a similar clause, I'm much more likely to assume it's intentional and simply not interview to save myself the trouble of trying to negotiate with a behemoth.
I also think it's helpful to realize that for a lot of companies, they are pretty happy to change an employment contract, you can make the process a lot nicer for everyone if you given them a heads up early in the process that you intend to review the documents and might ask for changes. Most recruiters I've worked with have been happy to send over all of the standard documents well ahead of a final offer so that I have time to review them, and it gives them a chance to get changes made before you actually sit down to fill out the final versions of all of the paperwork (but still review the version you are actually signing).
I will say that while my experiences negotiating these things have generally been good, I've also specifically avoided larger companies that have a reputation for overreaching IP ownership clauses. If a startup has an overly broad ownership clause, it's quite likely that they are just using a form contract and didn't think too much about it. If large company with thousands of developers has a similar clause, I'm much more likely to assume it's intentional and simply not interview to save myself the trouble of trying to negotiate with a behemoth.
Never sign a non-compete. Non-competes, the most anti-innovation, anti-skilled worker, anti-free market, anti-business and anti-American thing in working today.
Non-competes are protectionism for larger businesses over small/medium businesses and try to own employees skills that they may have brought to the company or client themselves.
As a freelancer, contractor and self-employed business owner/worker, please make these illegal, tired of these.
The worst part about non-competes is they are blanket protectionism usually and up to 2+ years of non-compete, this sometimes happens on a job that is only 1-3 months. You have to laugh at those types of situations. Usually the client will push them aside or lower the time to the job plus some time, but both non-competes and arbitration agreements are horrible for workers in today's economy where people change jobs frequently and many are self-employed/freelancing/contracting. NDAs are plenty enough to protect companies from clients and work done specifically for the projects.
After SCOTUS upheld arbitration agreements [1] I am worried if non-competes become fully legal which they are not in extreme cases except in California [2]. The FTC is looking into non-competes now and they should be illegal [3].
We need to move the way of California and make non-competes null and illegal, it hasn't stopped innovation in CA and may be a big reason why so much innovation goes on in Cali.
The non-compete should not exist. At the core, removing competition from skilled workers in our economy is bad all around, unless you are one of the current big fish.
[1] https://www.nytimes.com/2018/05/21/business/supreme-court-up...
[2] https://www.nytimes.com/2017/05/13/business/noncompete-claus...
[3] https://www.ftc.gov/news-events/events/2020/01/non-competes-...
Non-competes are protectionism for larger businesses over small/medium businesses and try to own employees skills that they may have brought to the company or client themselves.
As a freelancer, contractor and self-employed business owner/worker, please make these illegal, tired of these.
The worst part about non-competes is they are blanket protectionism usually and up to 2+ years of non-compete, this sometimes happens on a job that is only 1-3 months. You have to laugh at those types of situations. Usually the client will push them aside or lower the time to the job plus some time, but both non-competes and arbitration agreements are horrible for workers in today's economy where people change jobs frequently and many are self-employed/freelancing/contracting. NDAs are plenty enough to protect companies from clients and work done specifically for the projects.
After SCOTUS upheld arbitration agreements [1] I am worried if non-competes become fully legal which they are not in extreme cases except in California [2]. The FTC is looking into non-competes now and they should be illegal [3].
We need to move the way of California and make non-competes null and illegal, it hasn't stopped innovation in CA and may be a big reason why so much innovation goes on in Cali.
The non-compete should not exist. At the core, removing competition from skilled workers in our economy is bad all around, unless you are one of the current big fish.
[1] https://www.nytimes.com/2018/05/21/business/supreme-court-up...
[2] https://www.nytimes.com/2017/05/13/business/noncompete-claus...
[3] https://www.ftc.gov/news-events/events/2020/01/non-competes-...
I always offer to sign non competes with an amendment that says they must pay me for the time that it’s in effect, usually they remove it because it isn’t that valuable to them. I find almost universally asking for compensation for strict contract clauses sees them removed fast
That's actually somewhat close to the California way -- if a corporation wants you to not compete, they can volunteer to pay you your full salary to sit at home. But then the California twist is that the employee can choose to end that whenever they like. Voluntary golden handcuffs.
I agree and want to emphazise that especially desperate job seeker might sign it just to get a job in the given industry to a few years down the line hit a wall when getting a great offer at the competitor...
I went through this with a lawyer and she told me it is unlikely they would sue me, but they could make my life miserable. That was enough for many to be too scared to go to the competitors. - My experience is from Europe; but I will never ever sign a non compete anymore and so fo I recommend go anyone.
I went through this with a lawyer and she told me it is unlikely they would sue me, but they could make my life miserable. That was enough for many to be too scared to go to the competitors. - My experience is from Europe; but I will never ever sign a non compete anymore and so fo I recommend go anyone.
I saw something here about California banning arbitration agreements a while back:
https://news.ycombinator.com/item?id=17849490
I don't know what the scope of it is though. I wonder if anyone has pushed back at arbitration clauses successfully. I got screwed by one once, I'm pretty sure.
https://news.ycombinator.com/item?id=17849490
I don't know what the scope of it is though. I wonder if anyone has pushed back at arbitration clauses successfully. I got screwed by one once, I'm pretty sure.
When I started as a teacher I pushed back against my “contract” which I didn’t even see until two months after I started work.
In reality, the way employment law works is that the legal “contract” was a statutory one, implicit from the day I started. I started work and they paid me a salary, therefore I was legally an employee. The “contract” was really just the terms and conditions which the employer is required to offer the employee within a certain time period after their start date. In the UK this are called “particulars of employment”, I think.
I asked for changes to four of the clauses including IP assignment and me giving the school the right to be the final arbiter for any disputes of damage to pupils belongings. It gave them the right to withhold my pay in order to compensate parents who raise a grievance. So little Johnny could claim I stepped on his laptop and I wouldn’t be able to do anything about it if his parents got pissy and demanded I pay.
The school was sympathetic and said that of course no such extreme event would ever happen, but I was also told it would cost too much to hire a lawyer to change the document. I said I couldn’t sign it but that I agreed to everything else. They let me work there for several years anyway before I got made “redundant” when they hired a better teacher to take my place.
What a bunch of clowns. And that includes me — I should have walked really, but once you start working with kids it’s incredibly hard to let go of the adorable little monsters. One suspects that schools are well aware of this enormous emotional leverage they have.
In reality, the way employment law works is that the legal “contract” was a statutory one, implicit from the day I started. I started work and they paid me a salary, therefore I was legally an employee. The “contract” was really just the terms and conditions which the employer is required to offer the employee within a certain time period after their start date. In the UK this are called “particulars of employment”, I think.
I asked for changes to four of the clauses including IP assignment and me giving the school the right to be the final arbiter for any disputes of damage to pupils belongings. It gave them the right to withhold my pay in order to compensate parents who raise a grievance. So little Johnny could claim I stepped on his laptop and I wouldn’t be able to do anything about it if his parents got pissy and demanded I pay.
The school was sympathetic and said that of course no such extreme event would ever happen, but I was also told it would cost too much to hire a lawyer to change the document. I said I couldn’t sign it but that I agreed to everything else. They let me work there for several years anyway before I got made “redundant” when they hired a better teacher to take my place.
What a bunch of clowns. And that includes me — I should have walked really, but once you start working with kids it’s incredibly hard to let go of the adorable little monsters. One suspects that schools are well aware of this enormous emotional leverage they have.
I walked away from a company I really wanted to work for because the terms of their interview NDA were "everything and forever." IANAL, but I did take an IP law class when I was in graduate school, and I recall the professor saying that one of the key takeaways from the Listerine case is that any lawyer who allows their client to enter into contract with no term limit is basically incompetent. I lived outside California, and tech workers in my state had been successfully enjoined by a former employer on multiple occasions. I wasn't about to put my ability to earn a living in jeopardy.
I made it a few interviews into the loop while steadfastly refusing to sign the NDA, and I even told the recruiter that I objected to the scope of the contract. The recruiter indicated that they had absolutely no leeway on the NDA, and it was "take it or leave it." So after passing several interviews in the loop with flying colors, I called off the remainder of the interviews. They freaked out because I had been doing so well and wanted to know why on earth I wouldn't at least let them draw up an offer. "Your NDA is inequitable" was my responses, which really seemed to confuse them, because they were so used to tech workers dreaming of stock options in states with more worker-friendly legal environments like California just signing whatever they shoved at them. Their recruiting department still had the nerve to pester me a couple of times to sign the NDA after I terminated the interviews because I objected to the NDA.
*Edit: I previously called California a "right-to-work" state, which is something I've heard a lot of people say, but I guess it's not technically correct.
I made it a few interviews into the loop while steadfastly refusing to sign the NDA, and I even told the recruiter that I objected to the scope of the contract. The recruiter indicated that they had absolutely no leeway on the NDA, and it was "take it or leave it." So after passing several interviews in the loop with flying colors, I called off the remainder of the interviews. They freaked out because I had been doing so well and wanted to know why on earth I wouldn't at least let them draw up an offer. "Your NDA is inequitable" was my responses, which really seemed to confuse them, because they were so used to tech workers dreaming of stock options in states with more worker-friendly legal environments like California just signing whatever they shoved at them. Their recruiting department still had the nerve to pester me a couple of times to sign the NDA after I terminated the interviews because I objected to the NDA.
*Edit: I previously called California a "right-to-work" state, which is something I've heard a lot of people say, but I guess it's not technically correct.
Note that in many jurisdictions, eternal contract provisions are treated very skeptically. Often you can terminate them after a reasonable time just by writing to the company and saying so: "In the absence of further consideration..."
It is common for state law to make non-compete clauses wholly unenforceable. They put them in anyway, hoping you will be fooled.
New York investment banks are used to paying former employees to do nothing for a year after they leave, before they are allowed to, in effect, compete. Without paying, they would have no grounds to object to anything.
Consult a lawyer first: "Many" is far from "all". It is always better to have all this nailed down up front.
It is common for state law to make non-compete clauses wholly unenforceable. They put them in anyway, hoping you will be fooled.
New York investment banks are used to paying former employees to do nothing for a year after they leave, before they are allowed to, in effect, compete. Without paying, they would have no grounds to object to anything.
Consult a lawyer first: "Many" is far from "all". It is always better to have all this nailed down up front.
California is not a right-to-work state. Right-to-work laws prohibit employers from requiring you to join a union.
Right-to-work laws have several consequences. Weakening unions is why companies like them, but invalidating non-compete clauses often comes along. In some places it is actively illegal to write in even an unenforceable non-compete clause. You might be able to get damages after, even when they don't try.
Some states are actively hostile to workers. Some are actively hostile to black workers. Only a local lawyer can tell you how things are.
Some states are actively hostile to workers. Some are actively hostile to black workers. Only a local lawyer can tell you how things are.
It's a common myth but so-called "right to work" laws have nothing to do with non-competes.
The law as written is one thing; you still need to consider the law as it is interpreted by the courts and which laws are and are not enforced.
What are you afraid of by signing it? Even if indefinite NDAs were legal (contracts can't be indefinite) the amount of damage the information you learn during the interview process is most likely not that high. As time goes on that damage will very likely just go to $0.
> contracts can't be indefinite
Of course they can. That was the whole premise of the Listerine case.
Of course they can. That was the whole premise of the Listerine case.
With the Listerine case the end of the contact is when they stop selling Listerine.
A royalty fee agreement is pretty different to an NDA.
A royalty fee agreement is pretty different to an NDA.
What is this "Listerine case" you mention? It sounds interesting and important.
Just found this, you can buy a share of the original Listerine Mouthwash royalties from 1881: https://auctions.royaltyexchange.com/orderbook/asset-detail/...
They’re asking $2.1M and they earned $140k last year.
They’re asking $2.1M and they earned $140k last year.
I have pushed back against contract clauses. Sometimes it works, sometimes it doesn't. The most important outcome is the communication itself. Done well, the discussion builds mutual respect. Both sides want to enter into an agreement that is healthy for them as individuals and, in the best case, for the relationship itself.
An example: I've always looked very skeptically at NDAs. I pushed pretty hard for a sunset clause on one once. The other side pushed back. I ultimately decided to sign, as everything else about the arrangement was very acceptable. Once privy to the information on the other side, I understood their reluctance.
Also, there are some states with reasonable worker IP protections. Those change the foundations of some contracts for the better.
An example: I've always looked very skeptically at NDAs. I pushed pretty hard for a sunset clause on one once. The other side pushed back. I ultimately decided to sign, as everything else about the arrangement was very acceptable. Once privy to the information on the other side, I understood their reluctance.
Also, there are some states with reasonable worker IP protections. Those change the foundations of some contracts for the better.
This is a good answer. It forces the dialogue about the issues, and you either align or realise the relationship for what it is - one way. It hopefully helps build mutual trust but does also risk the relationship failing if you can’t agree on important things.
One should always have a BATNA, even if it is an unpleasant one.
https://en.wikipedia.org/wiki/Best_alternative_to_a_negotiat...
https://en.wikipedia.org/wiki/Best_alternative_to_a_negotiat...
One additional thing to watch out for is additional documents that are presented for your signature after you start work. One place gave me an employee handbook on day one and asked me to sign something saying I agreed to follow the terms in it. I could have said no, but obviously I had much less bargaining power at that point.
Since then, before accepting an offer I always said, "I'd also like to see any documents that I will be expected to sign on the first day of work, or any employee handbook whose policies I will be expected to follow."
Since then, before accepting an offer I always said, "I'd also like to see any documents that I will be expected to sign on the first day of work, or any employee handbook whose policies I will be expected to follow."
>One employer asked me to yield ownership of my entire work product during the term of my employment, including things I wrote on my own time on my own equipment, such as these blog articles. I think the employer should own only the things they pay me to create, during my working hours.
>When I pointed this out to them I got a very typical reply: “Oh, we don't actually mean that, we only want to own things you produced in the scope of your employment.” What they said they wanted was what I also wanted.
I still view this as a huge red flag. The companies I've come across that had fuck-you clauses like this inserted by overzealous lawyers usually had a toxic culture to match.
A company that will default to "we get first dibs on everything coming out of your brain" will probably not treat you with respect even if certain individuals who work there are reasonable human beings.
The worst company I ever worked for not coincidentally had the worst contract (e.g. they had 8-7 working hours followed by a verbal "dont worry nobody actually works that").
Contractual clauses are an underrated window into company culture. It's the one place where honesty prevails.
These days I dont push back on unreasonable clauses or give the opportunity for the hiring manager to say "whoops so sorry our lawyers tried to fuck you". When a company tries to tell me who it is I believe them - first time.
>When I pointed this out to them I got a very typical reply: “Oh, we don't actually mean that, we only want to own things you produced in the scope of your employment.” What they said they wanted was what I also wanted.
I still view this as a huge red flag. The companies I've come across that had fuck-you clauses like this inserted by overzealous lawyers usually had a toxic culture to match.
A company that will default to "we get first dibs on everything coming out of your brain" will probably not treat you with respect even if certain individuals who work there are reasonable human beings.
The worst company I ever worked for not coincidentally had the worst contract (e.g. they had 8-7 working hours followed by a verbal "dont worry nobody actually works that").
Contractual clauses are an underrated window into company culture. It's the one place where honesty prevails.
These days I dont push back on unreasonable clauses or give the opportunity for the hiring manager to say "whoops so sorry our lawyers tried to fuck you". When a company tries to tell me who it is I believe them - first time.
I wish a lawyer would write up some standard verbage the industry could all agree on for this common clause in contracts. Put it on a pretty webpage with an explanation of how it's fair and protects both parties. Include some horror stories people can point to to disarm the "it doesn't matter" argument.
I'd rather see the contract say that work delivered to the company belongs to the company, no exception. This protects the companies future interests, they clearly own everything their employees have delivered. A conflict-of-interest clause, a NDA, and a clause stating I can't take company data to use elsewhere can cover all other concerns without limiting my ability to be a free individual in my free time.
I'd rather see the contract say that work delivered to the company belongs to the company, no exception. This protects the companies future interests, they clearly own everything their employees have delivered. A conflict-of-interest clause, a NDA, and a clause stating I can't take company data to use elsewhere can cover all other concerns without limiting my ability to be a free individual in my free time.
I can’t run a consulting company unless I get to own the ideas I produce. However, I offer a non-exclusive license to the client. And of course anything that is outright confidential stays with them.
Fair. I was thinking more about standard W2 employees who rarely think about contracts, they're the ones that need a simple website for reference and help. Consultants are familiar with contracts and can make educated contract decisions on their own.
My two cents here: I read every contract we were offered and if there is one thing I learned it’s that everything is negotiable despite how it’s presented. If you can articulate a reasonable need, reasonable people will listen. Lawyers are paid to get the most favorable result so most companies, especially big ones will give you a very lopsided first pass and will tell you it’s required. But you can totally push back. If they 100% won’t budge walk away. They WILL be trouble. Good luck out there.
Agreed. I've been in this situation and managed to have "non-negotiable" confidentiality agreements and intellectual property contracts changed. It's never a pleasant experience but clarity and communication are essential to achieving the results you want.
I think the key elements are a) mention your intention to review IP contract language early, in writing, so it isn't a surprise later (because it WILL be a surprise otherwise) b) only talk to people who can actually make a change (no low-level people) c) be reasonable yourself (don't overreach) and be specific about your change requests (don't make them guess) d) don't get angry (can be difficult), it's a negotiation e) actually be willing to walk.
I think the key elements are a) mention your intention to review IP contract language early, in writing, so it isn't a surprise later (because it WILL be a surprise otherwise) b) only talk to people who can actually make a change (no low-level people) c) be reasonable yourself (don't overreach) and be specific about your change requests (don't make them guess) d) don't get angry (can be difficult), it's a negotiation e) actually be willing to walk.
If the problematic contract clause is completely unenforceable by law then I usually don't bother arguing about it.
People like to write all kinds of weird things in contracts, but you can't legally sign away your rights (in Europe, USA may be different?). I quite happily break unlawful contracts, no company with a functional legal department is ever going to be stupid enough to take it to court.
People like to write all kinds of weird things in contracts, but you can't legally sign away your rights (in Europe, USA may be different?). I quite happily break unlawful contracts, no company with a functional legal department is ever going to be stupid enough to take it to court.
> but you can't legally sign away your rights (in Europe, USA may be different?)
You can easily sign away your rights. If you couldn't, it would be impossible to sell things (which was a feature of European feudalism - land was generally not alienable).
A right that you can't waive is called an inalienable right. A right that you can waive is just a right.
You can easily sign away your rights. If you couldn't, it would be impossible to sell things (which was a feature of European feudalism - land was generally not alienable).
A right that you can't waive is called an inalienable right. A right that you can waive is just a right.
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I do this when renting apartments.
Rules like no pets, no additional occupants, etc are unenforceable where I live. But if I asked the landlord to change it, they may just pick someone else. Therefore, I sign and break the contract.
Rules like no pets, no additional occupants, etc are unenforceable where I live. But if I asked the landlord to change it, they may just pick someone else. Therefore, I sign and break the contract.
Always push back on terms in contracts that you don't like. I deal with a lot of Master Services Agreement and Statement of Work markups. 75% of the time people just put out changes without really being very tied to them. If they want to do the deal, hire you, etc., they will make changes.
Here are some tips that have worked for me. I am not a lawyer but I've spent a decade plus reading all kinds of contracts. It's kind of a hobby.
1. Read the entire contract carefully.
2. Consult a lawyer if there are things you don't understand. My biggest single disaster was because of failing to do this on a partnership agreement. It almost tanked a company acquisition deal. I always go back to counsel whenever something new pops up. You can think of it as paying lawyers to teach you how to take care of yourself.
3. If you see something you don't like, you can ask a question like the following: "I see you put X in the contract. What's the problem you are trying to solve here?" It sets up a conversation about how to rewrite it in terms that are more acceptable.
4. Provide alternative language whenever you can. This is better than forcing the other side to go back to their lawyers who may be motivated to cover their butts / show they are putting in the time rather than finding a real solution.
There are things that counterparties see as vital so at some point you'll hit things where they simply won't budge. At that point you can make an informed decision whether you want the overall deal. Meanwhile you get the other stuff that's important to you.
Places I tend to be really careful: matters related to IP, liability, and indemnification. These are all areas that can get really painful if things go south. There are a number of tricks to do end runs around liability in contracts. Check with counsel if you have any doubt and push back hard.
Places where I'm more flexible: terms for payment, length of termination period, governing law, venue for resolution of disputes (e.g., arbitration vs. courts), etc.
Again I'm not a lawyer and your experience may be different.
Here are some tips that have worked for me. I am not a lawyer but I've spent a decade plus reading all kinds of contracts. It's kind of a hobby.
1. Read the entire contract carefully.
2. Consult a lawyer if there are things you don't understand. My biggest single disaster was because of failing to do this on a partnership agreement. It almost tanked a company acquisition deal. I always go back to counsel whenever something new pops up. You can think of it as paying lawyers to teach you how to take care of yourself.
3. If you see something you don't like, you can ask a question like the following: "I see you put X in the contract. What's the problem you are trying to solve here?" It sets up a conversation about how to rewrite it in terms that are more acceptable.
4. Provide alternative language whenever you can. This is better than forcing the other side to go back to their lawyers who may be motivated to cover their butts / show they are putting in the time rather than finding a real solution.
There are things that counterparties see as vital so at some point you'll hit things where they simply won't budge. At that point you can make an informed decision whether you want the overall deal. Meanwhile you get the other stuff that's important to you.
Places I tend to be really careful: matters related to IP, liability, and indemnification. These are all areas that can get really painful if things go south. There are a number of tricks to do end runs around liability in contracts. Check with counsel if you have any doubt and push back hard.
Places where I'm more flexible: terms for payment, length of termination period, governing law, venue for resolution of disputes (e.g., arbitration vs. courts), etc.
Again I'm not a lawyer and your experience may be different.
I find that contractual language covering "ownership" of IP is likely ineffective and doesn't match reality. If I'm paid by a company to write some code while employed, sure the employer owns it. But it also exists in my brain. Do they own that too? Can I write it again for myself or for another employer? If not, how much needs to change? If I wrote it in Python originally, would a functional equivalent in JavaScript remain "owned" by the original employer? I'm surprised contract disputes surrounding this concept aren't quite common.
An employer tried to hand me a contract that would have me sign over the rights to my name, voice, and likeness "for marketing purposes". I was like hell to the no, and told the HR person I wouldn't sign the contract as written, being sure to clarify that I had no problem with my name and likeness being used for practical, internal company purposes (like printing company IDs).
They printed up a new contract with the offending clause deleted.
I didn't last long there, and I think part of the reason why is because they were pissy about the contract.
Should have seen the writing on the wall.
They printed up a new contract with the offending clause deleted.
I didn't last long there, and I think part of the reason why is because they were pissy about the contract.
Should have seen the writing on the wall.
Most of the time it just happens because a company is trying to save money and use a template that works fine for most people.
Most people don’t have a second job / blog / business / side hustle / whatever and don’t care if the company owns everything they make.
I’ve renegotiated the same clause as in the blog multiple times with no issues.
Also had to do the same for a book I wrote taking out of copyright fairy tales and gender swapping them with an algorithm I made. The publishers contract (quite understandably) said the manuscript couldn’t contain any work in the public domain, but the whole concept of the book was to gender swap a text exactly as is, to shine a light on the inequalities in the original. It was a bit of a battle to change it but I think more based on requiring more lawyer time than anyone trying to do anything untoward.
Always ask to change it but always be nice about it. They probably aren’t trying to screw you over!
(But also don’t let anyone screw your over just because they didn’t mean to!)
Most people don’t have a second job / blog / business / side hustle / whatever and don’t care if the company owns everything they make.
I’ve renegotiated the same clause as in the blog multiple times with no issues.
Also had to do the same for a book I wrote taking out of copyright fairy tales and gender swapping them with an algorithm I made. The publishers contract (quite understandably) said the manuscript couldn’t contain any work in the public domain, but the whole concept of the book was to gender swap a text exactly as is, to shine a light on the inequalities in the original. It was a bit of a battle to change it but I think more based on requiring more lawyer time than anyone trying to do anything untoward.
Always ask to change it but always be nice about it. They probably aren’t trying to screw you over!
(But also don’t let anyone screw your over just because they didn’t mean to!)
This is such a good point. I've been pushing back for quite a while, and have generally had a positive response where the company revises the contract wording to a more acceptable level.
I feel that the principle of least privilege would be a good point for employment contracts to start, rather than the current approach of "try get control over everything employee might think of whilst employed, even if it's during their own time and unrelated to the business"
I feel that the principle of least privilege would be a good point for employment contracts to start, rather than the current approach of "try get control over everything employee might think of whilst employed, even if it's during their own time and unrelated to the business"
> "try get control over everything employee might think of whilst employed, even if it's during their own time and unrelated to the business"
That is illegal in California, and California contracts I've seen have mentioned that.
That is illegal in California, and California contracts I've seen have mentioned that.
I always have a contract when I teach my classes or consult. I always protect my IP. They can pay me for ideas or coding, but I only grant full ownership to IP that pertains uniquely to their business. Anything “generic to software testing” is an idea I own and grant them a non-exclusive and perpetual license to.
I also push back on drug tests and insurance requirements and background checks, although for the right money I will relent.
I also push back on drug tests and insurance requirements and background checks, although for the right money I will relent.
Good time to remember that saving money isn't only for making a big purchase one day. Having money saved, money that just sits there doing nothing, is power in these situations.
It would be good to make a Joel Test for employment contracts.
I don't really know why most employment contracts are not from a standard source anyway: we will pay you this much, this often, for this many hours' work during that period. You don't take or destroy our equipment or represent us badly in public. When you leave you give us our equipment back, and don't solicit our employees for 6 months after. You get a bonus on these terms, and share options on these terms. Only things you make at work OR using our equipment belongs to us.
I don't really know why most employment contracts are not from a standard source anyway: we will pay you this much, this often, for this many hours' work during that period. You don't take or destroy our equipment or represent us badly in public. When you leave you give us our equipment back, and don't solicit our employees for 6 months after. You get a bonus on these terms, and share options on these terms. Only things you make at work OR using our equipment belongs to us.
The problem with this approach are the edge cases. Over a couple hundred years there have been lots of those, now taught about enthusiastically in law school.
Every time there's an unfavorable edge case to (any) employer, then another clause gets added to the "standard contract".
So with reusable contracts (like employee contracts) you end up with very asymmetric goals, and a very asymmetric contract. Yes, push back is important, and it's valuable to the company to hear that push-back.
Speaking as an employer, I would not be prejudiced against an employee questioning or rejecting terms in the contract. Some changes might be deal-breakers, some might not. But clearly we can negotiate and assuming we don't find any mutual deal breakers we'll both be happy.
I would personally also see this as a positive, not negative, interaction with an employee, not something for them to fear.
But of course, being new, they don't know that, and I understand the asymmetry of power in this situation.
Every time there's an unfavorable edge case to (any) employer, then another clause gets added to the "standard contract".
So with reusable contracts (like employee contracts) you end up with very asymmetric goals, and a very asymmetric contract. Yes, push back is important, and it's valuable to the company to hear that push-back.
Speaking as an employer, I would not be prejudiced against an employee questioning or rejecting terms in the contract. Some changes might be deal-breakers, some might not. But clearly we can negotiate and assuming we don't find any mutual deal breakers we'll both be happy.
I would personally also see this as a positive, not negative, interaction with an employee, not something for them to fear.
But of course, being new, they don't know that, and I understand the asymmetry of power in this situation.
> don't solicit our employees for 6 months after
This is unenforceable in California.
This is unenforceable in California.
Sure :) But I'd rather have a standard contract that's modulated by local employment law than a bespoke contract that's modulated by local employment law. Or have optional blocks included or not (that makes a Joel Test for contracts almost self-documenting).
My hard-won experience on this matter is: If an employer/client tries to pressure you to "c'mon, just sign it, it doesn't really mean that / isn't enforceable anyway" -- especially when the contract unambiguously does really mean what they say it doesn't really mean ...
From that fact the transaction is pretty much destined to not be particularly fruitful anyway, and (unless you're short on cash or otherwise in some kind of a corner), you're best cutting your losses and moving on.
From that fact the transaction is pretty much destined to not be particularly fruitful anyway, and (unless you're short on cash or otherwise in some kind of a corner), you're best cutting your losses and moving on.
IANAL. Just my sharing relevant observations/experience.
I’ve had a reputation among most of the people with whom I’ve signed contracts for being the rare person who reads the whole thing. The author is right that it’s a good idea to push back on parts of the contract that don’t sit well, and that it’s a privilege to be able to do so.
When I’m in a strong negotiating position, I’ve found also that the author is also right that the other party is usually truthful and also that they’re usually open to making changes to remove conflicts and resolve ambiguities. If you’re in that position, you’re usually much better off pushing back than accepting the contract as is.
Even if you know your contract has unenforceable provisions, and you know they’re unenforceable, they’re a litigation landmine. Maybe they’re highly unlikely to become actual litigation, but if there’s even a possibility everyone benefits from eliminating it. If that becomes a point of contention, bonus points: you’ve found a red flag with this other party to your contract. Even if you move forward you have better understanding of where you can anticipate conflict.
But most of the time, unless your contract is incredibly unfair or the parties are incredibly unprepared to negotiate its terms, you’ll just get the edits you want because everyone already agrees in principle that it’s okay to move forward.
I’ve had a reputation among most of the people with whom I’ve signed contracts for being the rare person who reads the whole thing. The author is right that it’s a good idea to push back on parts of the contract that don’t sit well, and that it’s a privilege to be able to do so.
When I’m in a strong negotiating position, I’ve found also that the author is also right that the other party is usually truthful and also that they’re usually open to making changes to remove conflicts and resolve ambiguities. If you’re in that position, you’re usually much better off pushing back than accepting the contract as is.
Even if you know your contract has unenforceable provisions, and you know they’re unenforceable, they’re a litigation landmine. Maybe they’re highly unlikely to become actual litigation, but if there’s even a possibility everyone benefits from eliminating it. If that becomes a point of contention, bonus points: you’ve found a red flag with this other party to your contract. Even if you move forward you have better understanding of where you can anticipate conflict.
But most of the time, unless your contract is incredibly unfair or the parties are incredibly unprepared to negotiate its terms, you’ll just get the edits you want because everyone already agrees in principle that it’s okay to move forward.
I once had a business owner put forth a similar contract after they had purchased the company where I was employed for a few years. I refused to sign (I was only one out of 60 or so employees that did so). The "accountant" told me I would never work in California again as all companies were moving in this direction. I'm still employed in CA, however, that company no longer exists. :).
I cannot state how real this is as a startup. There are instances where I have said “yeah I totally agree with you but our lawyers worded it this way.” Most of the time it’s fine and not material. Some of the time it’s the defining detail of the contract. I wish I had the wisdom to know the difference.
Had a potential coach, who I was ready to pay $25k for a single day, ask me to sign a contract that included a clause that gave them power of attorney in the event of a contract dispute.
I said, this seems intense, I’m ready to hire you, just drop this clause… and she wouldn’t do it.
I said, this seems intense, I’m ready to hire you, just drop this clause… and she wouldn’t do it.
My typical approach to ANY contract is elimination of ANY one-sided clauses.
They're not responsible for X but i am.
I'm obligated to do Y but they're not.
I can be sued but they're not.
I always make them to trim the BS and equalize the wording.
They're not responsible for X but i am.
I'm obligated to do Y but they're not.
I can be sued but they're not.
I always make them to trim the BS and equalize the wording.
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> You may agree today, but that can change. The company's management or ownership can change.
I've lost over 7000 EUR of income from a German company over vague contract clauses which I was too lazy to sort out when signing it, because my boss and I had known each other for a long time when signing, and I fully trusted him. 3 years later, the company was sold, and the new boss started to randomly fire people on any given day he saw fit. One day I've got a call that I should stop working on my tasks immediately. I was supposed to be paid until the end of the month coming after the month in which the notice was given, but they've never paid - not even for those ~15 days I already worked in that month - and German courts could not care less, plus it was difficult/impossible for me to chase them, being based in another European country.
Always be careful about what exactly do you sign - the circumstances may change considerably, however unlikely it seems at the time.
I've lost over 7000 EUR of income from a German company over vague contract clauses which I was too lazy to sort out when signing it, because my boss and I had known each other for a long time when signing, and I fully trusted him. 3 years later, the company was sold, and the new boss started to randomly fire people on any given day he saw fit. One day I've got a call that I should stop working on my tasks immediately. I was supposed to be paid until the end of the month coming after the month in which the notice was given, but they've never paid - not even for those ~15 days I already worked in that month - and German courts could not care less, plus it was difficult/impossible for me to chase them, being based in another European country.
Always be careful about what exactly do you sign - the circumstances may change considerably, however unlikely it seems at the time.
Just want to say that here in the US, if your employer ever doesn't pay you what you think you're owed, contact the Department of Labor. There's a division dedicated to making sure the employer doesn't play games with wages. They'll show up real fast, possibly even that day, and your employer will pay (plus fines).
> If the employer is a good one, they want the contract to be fair, and if the contract is unfair it's probably by accident.
This is an optimistic, and perhaps productive perspective, but often the legal advice suggests writing the template language in the employer’s favor, knowing it may be negotiable.
The advice is good… read agreements before signing, and negotiate reasonable points.
This is an optimistic, and perhaps productive perspective, but often the legal advice suggests writing the template language in the employer’s favor, knowing it may be negotiable.
The advice is good… read agreements before signing, and negotiate reasonable points.
So important to do!
Make sure you exclude anything you have previously written or thought about writing.
Make sure you understand the employee handbook, which is often included by association.
It seems fair to me that anything I do 'off the clock' on hardware I own is mine, though of course you need to respect any confidentiality agreements you sign too.
Make sure you exclude anything you have previously written or thought about writing.
Make sure you understand the employee handbook, which is often included by association.
It seems fair to me that anything I do 'off the clock' on hardware I own is mine, though of course you need to respect any confidentiality agreements you sign too.
Software Freedom Conservancy's ContractPatch initiative has a great saying: "Everything Is Negotiable"
https://sfconservancy.org/blog/2016/aug/04/everything-is-neg... https://sfconservancy.org/contractpatch/ https://sfconservancy.org/blog/?tag=ContractPatch
https://sfconservancy.org/blog/2016/aug/04/everything-is-neg... https://sfconservancy.org/contractpatch/ https://sfconservancy.org/blog/?tag=ContractPatch
I've had to push back on this provision in the past - the one where your employer now own all of your side projects. As a blogger and open source maintainer this is a deal breaker for me.
I always manage to get it altered, but it is such an annoying point of friction.
I'd love something like the YC safe financing documents but for employment contracts - a free resource with well vetted, well explained contract language so I can say "let's use this language from here" and everyone can get on with their lives.
I always manage to get it altered, but it is such an annoying point of friction.
I'd love something like the YC safe financing documents but for employment contracts - a free resource with well vetted, well explained contract language so I can say "let's use this language from here" and everyone can get on with their lives.
I wonder what would happen if someone said “if you own everything you also accept all liability for it”.
These techniques work great, I've had success with pushing back against language in contracts like these even as an intern. Often times, after doing all the hard work of interviewing you, companies are willing to compromise, so they don't have to go back to square one.
Places this might not work are larger companies with armies of lawyers--you don't have leverage in these places, since if not you, they can find someone else to sign the contract.
Places this might not work are larger companies with armies of lawyers--you don't have leverage in these places, since if not you, they can find someone else to sign the contract.
Another thing to note is just because someone puts a piece of paper in front of you doesn't mean you need to sign it. It also doesn't mean you need to object. You can just ignore it.
For example, if you are already employed, your employer may want you to sign another document. I've successfully pocketed such documents and not returned them. I was never called on it.
If they don't force the issue, there's no point in making it an issue.
For example, if you are already employed, your employer may want you to sign another document. I've successfully pocketed such documents and not returned them. I was never called on it.
If they don't force the issue, there's no point in making it an issue.
I always push back. Usually I just mark out the parts I don't like (or add to the contract!) and initial them and send it back for them to fix. If they don't want to fix it then I wish them all the best with their project and look elsewhere.
>Any contract in which you give up your right to sue the other party if they were to cheat you.
Is there any contract that doesn't do this with the "binding arbitration" bullshit?
Is there any contract that doesn't do this with the "binding arbitration" bullshit?
My experience has been that almost all contracts end up being edited. Whoever gives the impression that "they never change the contract" is lying.
First, don't edit the proposed contract itself. Instead, add a rider that specifically overrides the provisions you don't like. Something like "Intellectual Property. Work produced by employee shall be considered work-for-hire. 'Work" is defined as..." Then add a line to the bottom of the rider that says "If any portion of this rider is in conflict with the main contract, the terms of the rider will override the terms of the contract." The benefit of this approach is that you avoid the back-and-forth niggling over particular words in the main contract, and you often overcome the other party's resistance to changing the language their lawyers said had to be there. It's stupid, but it works.
The second technique is simply to say, "this contract isn't large enough to justify these provisions. If you would like to bump the contract, we can talk. Otherwise, no." This has worked for me in negotiating software licenses. I haven't tried it in an employment situation. It works because it forces the other side to acknowledge that their demands have costs, and they can have what they want only if they pay for it. They never do.
I am not a lawyer. Heed this advice at your own risk.