[TriLUG] legal question

[Matt Pusateri]

On Wed, March 23, 2005 9:45 am, James Brigman said:
> 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
>

James,

Well written!  Thanks for taking the time as this advice I am sure
benefits all Triluggers at some point.

Matt