Agree, but my point is that the law is more developed with respect to non-compete agreements in most jurisdictions.
@kiddie: Non-competes are enforceable only if the company pays you to sit on the sideline as slavery has been outlawed in this country for a while now.
A cursory google turned up articles saying that, with some exceptions, post-employment noncompete agreements are typically not enforceable in CA. My wild guess (with no experience in this area) is that the language claiming rights to future creations is merely an attempt to get around CA law on noncompetes.
The assertion of rights to the employee’s 24/7 creations during employment sounds like a no-moonlighting provision.
It is unfortunate that this was presented as take-it-or-leave-it and I’d have been very tempted to push back on that, to provide suggested edits to the future creations provisions that would be agreeable to the employee (i.e. cross them out), give it to HR and see. (My sibling, an executive in a large CA tech company, has edited his employment agreements before signing, though perhaps this is more expected in high-level positions.) Maybe this company is too small to have HR personnel and can’t afford the legal expense of negotiating employment contract provisions. Considering the awkward situation with the boss, it was probably best to walk away.
I’d bet this is a smaller company. The two contracts that I reviewed this morning are not nearly as restrictive. Both are offers in CA so maybe that’s why??
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Non executive hires typically do not have enough personal uniqueness to the employer to have much power to do this kind of thing. The likely result is that the employer with an overreaching employee agreement will just move on to a more docile or naive candidate. The job seeker usually needs the job more than the employer needs the job seeker.
Executives also may have more personalized agreements to begin with, such as golden parachutes that do not apply to other employees, so there are more things that they may want to negotiate.
The other thing odd here is that there was no mention of a previous thing to sign about non-disclosure and non-use of trade secrets, etc. outside the employer, and assigning inventions based on work for the employer or using employer resources to the employer, which one would expect an employer to want from even part time interns.
Interns may not be exposed to confidential information / trade secrets so no need for a non-disclosure / intellectual property theft form.
With respect to assigning inventions, there may be a lack of consideration issue (which is also an issue for the proffered employment contract under discussion in this thread).
That is an unrealistic expectation for typical interns in the computer industry.
It is also unrealistic to say that interns never invent anything of commercial value while doing work for the employer.
I’m glad the OP started this discussion. I’ll pass on this info to my son to have his contract reviewed by a lawyer, tho he may not listen.
One Q I have is if the headquarters of a job is in CA, but the job is in another state, do the CA rules apply?
The state where you physically do the work is the laws that must be followed.
Given the suddenness and pressure imposed here, it immediately made me suspicious that the company had recently encountered the problem they were trying to address (employees leaving to set up their own firm) and they were now trying to shut the door after the horse had bolted.
This was a well thought out, lengthy contract written by a legal team. If it’s true that “everyone” who works there signed it then it’s not the result of a “recent” problem. There were noncompetition and other clauses but this was a separate section, and it wasn’t a no moonlighting clause.
DC did attempt to make alterations directly on the contract (as other family members in other industries have done) but the employer claimed to not understand the contract and wouldn’t even discuss it. The suddenness and intensity of the pressure started from the instant the employer learned DC actually consulted a lawyer. It makes me wonder if some people don’t know enough to consult one.
@kiddie re: your post #29. Although correct with respect to workplace practices, it may not be correct with respect to written & signed employment contracts which often specify which state’s laws apply under the terms of the contract.
Of course, the state specified must have a reasonable relation to the employer such as the law of the state where the company headquarters is located.
It is likely that most people do not consult a lawyer when signing a long legal contract (or clicking through one on a web site), so they end up signing away rights that they later find that retaining would have been better for them. Even those who would want to consult a lawyer may not have the money to pay for one.
But then, most lower level employees have little negotiating power compared to an employer, since they probably need the job more than the employer needs them.
Both of the above are presumably why some states have laws against or limiting some types of agreements (like limiting or prohibiting non-compete agreements, or limiting the scope of invention assignment agreements) to protect the general public in interactions with more powerful entities like employers (who may have armies of lawyers at their disposal).
A quick plug for any schools that have legal services available for students. My D took everything from leases to employment contracts in for them to review. They can also help advise young adults that might have an issue they don’t want to share with parents and some provide support navigating through immigration issues, too. Well worth checking the box to accept the optional $40 or so fee every semester so she had access to it. https://studentlegal.osu.edu/
This.
DH got a new job, starting next month. He was pretty high up in the current company and had to sign NCA and some other paperwork. Before the new company made an offer, their lawyers looked over his contract with the current company and said that they will be willing to wait for him for a year IF he had any issue leaving the current company. It was a concern, things could go either way because the new company is indirectly (could be directly) competing with his current company. But luckily his boss wasn’t going to mess up DH’s opportunity and congratulated DH on the new job. So he is on his way out…but the CEO was mad that his boss didn’t counter offer, and claimed he was “concerned” with DH leaving. But DH’s boss was able to talk him out of it. Very grateful that they let him go without a problem. It could be a mess.
The only thing that will be absolutely clear is that DH will NOT have any rights to the 40+ patents that he authored and submitted with the current company.