[TriLUG] legal question

[James Brigman]

Marc;

[ Disclaimer: I am not a lawyer. This posting is not legal advice. ]

A job offer is normally a joyous event. You don't sound very overjoyed.
If someone's offering you a job and you feel the need to consult a labor
lawyer, something's wrong here. Think about what that means to you. 

A labor lawyer with the knowledge you seek would cost you more than $200
to have some kind of letter drafted, more than $1000 to keep a lawyer on
retainer and more than $1500 for you to be represented by that lawyer to
a potential employer. Show up with a lawyer to meet with a potential
employer and watch them run faster than you can say "E Pluribus Unum".
Instantly, you've got no job offer AND you've lost some of your own
cash.

Focus on where you are now, and where you want to be in the future: Are
you currently employed and have the option to "do nothing"? Do you have
other opportunities? How important is this job to you? What does it mean
for your career in the long term?

If you took the job, do you think you might have to fight against
increased control and regulation in the future? "Be here by 8:05am or
you will be written up", "Chewing gum in the conference rooms will get
you written up", and "Parking in the reserved spaces will get you
written up".  How productive can you be if your 'nads are kept in a
glass jar on a shelf in the HR dept? How happy are you going to be at
<TOYCO> with this lingering fear?

What benefits are being offered in return for this control? Are they
offering an extremely high pay rate? Is there special training you can't
get elsewhere? Sending you to USENIX for free? Offering free RHEL
certification? You've talked about their attempts to take away from you
- what is it they are offering in return? Every employment situation is
a combination of restrictions and benefits which suit the employer and
the employee. Focus on these and weigh how successful you can be under
these conditions. 

If you are being represented by a contracting or headhunting firm, talk
to them about this document. It is in their best interest for you to
take the job. They may not even be aware of the document and might help
you work through the issue successfully. They may have lost previous
candidates due to this form and might be eager to work through it.

Be mindful of WHO is asking you to sign this document. Many HR
departments have been dismantled in the past decade, mostly outsourced
or changed out with people who may be ignorant of the law. Much "brain
trust" has been lost. Was this document written by some 20 year old HR
chick (or rooster) who got the job based on TANDA? The headhunting firm
or hiring manager may have no clue this document has been placed into
the mix, and the writer of the document might just be a kid who doesn't
know any better.

And if you are, in fact, expected to sign such a document as a condition
of employment, Jon Carnes advice is good: counter-propose another
document. I'd change the document and remove the offending verbage, and
in fact I'd try to write it to my own advantage. I wouldn't simply give
the "If you want me to sign this, I'm walking." answer. Don't bring
"walking off" to the table just yet. Ask them why they would propose
such a document and if, in fact, they've had to worry about the
"problems" it tries to "protect" the company from. And know in your
heart that there are probably people now working for the company who did
not sign such a document. 

Many companies do ask potential employees to sign a document indicating
that the work they do on company time belongs to the employer, which is
a reasonable expectation. Only people like Linus Torvalds get the sweet
deals where they get paid by an employer but get to develop Open Source
for the rest of the world. 

A reasonable document would say something that includes only work done
on the job, but says nothing about work done off the job and removes the
"in perpetuity" concept. Trying to own things written after employment
is difficult, and the former employer would have to show duplication of
something uniquely available at the company. If this were an enforceable
contract element, AMD would not be doing Intel-compatible processors
today. 

Remember the old adage about "Offering your manager three options"?
Well, one clear option is to walk away. You always have that option. A
second option is to sign the document and take the job. A third option
might be to rewrite the document to something acceptable and throw the
ball back into their court.  Sometimes, where ego is involved, it's just
about signing the form, not necessarily about what's on the form. :-)

One last thing: TAKE YOUR TIME playing the game. There are elements of
Poker in all hiring negotiations. Your leverage increases with time, not
decreases. Negotiation is an intricate balance of terms, a "ballet" that
you dance with the employer to secure conditions of benefit to you both.
The only people with fire in their pants are the people who need to get
paid off your labor. 

Hang in there man: it's to the benefit of TriLUG for our members to be
gainfully employed in positions they enjoy. We're all rooting for you,
just understand that you're the one driving the boat - we're all just
spectators. 

JKB

On Wed, 2005-03-23 at 07:31 -0500, Marc M wrote:
> Hello:  
> 
> I have a 'technical' question that does not involve technology
> specifically, but I am hoping that someone on the list can help me.  I
> have an employment possibility doing Red Hat Enterprise Linux and a
> lot of security stuff.  I really want the job but they are making me
> sign this Stalinist contract to the effect that ANYTHING now or in the
> future (thoughts, concepts, software, plans, processes, RECORDINGS,
> images, etc.) -- is THEIRS.  You wouldn't believe it if I had time to
> type everything.  Basically I am a slave to them from now on.
> 
> That's right, anything NOW OR IN THE FUTURE, on the job or off.  So if
> you are configuring/writing/tweaking software all day, one would
> <think> that you would later be liable or subject to just about
> anything they want to claim.  Think about it.   Who doesn't learn and
> grow from one job to another?  Who doesn't apply
> things/practices/habits/processes, from place A to place B?
> 
> I beat out every other candidate from multiple agencies with this.  I
> have come a LOOOOONG way in this process with the recruiter and I am
> formulating a letter to the effect of 'I am sorry but I am not signing
> my life away and if it's a dealbreaker so be it'.   I also included
> some HUGE info to show that I am interested in 'educating' these
> recruiter types as to the restrictions they are placing on something
> that is suppossed to be 'open'.   I am beginning to conclude that some
> people and opportunities are not worth fooling with, since they come
> with more headaches than they are worth.
> 
> Does anyone know a qualified lawyer in the space of OSS that
> understands contracts, employment, and the GPL for starters?  If
> someone can represent me in this matter I may actually be able to go
> forward and strike through terms and conditions.   And have any of you
> run into similar situations?  What did you do?   Finally let me
> underscore that this goes WAAAY beyond the typical 'trade
> secrets'/proprietary information type verbiage, which I would consider
> normal and reasonable under most circumstances.
> 
> Thanks
> Marc