4 ms·

even if it's explicitly stated in the contract and the employee has agreed to it? Why would it get thrown out?

yulaow 7y ago
Some states (don't know in USA, speaking from EU) have laws against "unfair clauses" which make those automatically null even if you accept it. Usally the point is that for each clause in a contract which put an obligation on the employee, the employer must "give something back" to repay for that obligation in equal terms. In this case in my state the employer should at least have paid for all the time out-of-work in which op worked on his IP, and with a rate established by op
terranoct 7y ago
Contracts state a lot of things that don't necessarily hold up. It's just words on paper. Sometimes they're even tenable in one area, then used in another state which disallows some claim or another. Employment contracts in particular are subject to a lot of restrictions and protections regardless of what the employer makes people sign, because labor laws.
clucas 7y ago
There are things that you can't contract away. An obvious example in the U.S. is that even if you have a contract saying you have to work for someone for no pay, forever, with no possibility of getting out the contract, it would be unenforceable because we, as a nation, have decided that slavery should not be legal. It turns out, many of these un-contractable issues involve the employer/employee relationship... another example: even if you sign a contract saying your employer doesn't have to pay you overtime, that provision would be thrown out if you challenged it, and would probably get the employer in trouble with various agencies, including the IRS. I am a lawyer, but I don't have experience in this field, and this is not legal advice (you have to hire me for that), but this issue seems like one that a court (depending on the state, no doubt) would find that it doesn't matter what the contract says, an employer can't own everything an employee does. To emphasize: this is NOT legal advice, don't rely on it, and you really should seek counsel if you are encountering this issue in real life.
- umanwizard 7y ago
  Sure, plenty of stuff is unenforceable in contracts. Is there any evidence that this particular sort of extremely common clause is in that set?
  - clucas 7y ago
    The fact that the employer/employee relationship is so carefully controlled (specifically to limit the power the employer wields over the employee outside employment) is what makes me suspect that at least some jurisdictions would decline to enforce an employment contract provision that gave the employer ownership over all IP the employee produces, even if the IP is produced off-hours, without use of the employer's equipment, and not having any relationship to the employer's business. Again, I don't actually know for sure - I'm not an expert in this area of law. But I think there is enough evidence in the rest of (U.S.) employment law jurisprudence to indicate that it's not open-and-shut in favor of the employer.
    - goatherders 7y ago
      At issue is he says that what he created is within the realm/market of his employer. That would be akin to an Intel engineer saying "I designed another microchip for computers but I promise I was doing this for me and not for Intel so its mine." You cant do some work on specific sector A for your employer and then do some other work in specific sector A on your own and now expect the employer to ask, justifiably, "who decided the dividing line here?"
      - clucas 7y ago
        My apologies, I was responding to the question about why a court would find an employment contract provision unenforceable - we don't know what the OP's employment contract states (or if he even has one), so I was treating this whole line of inquiry as separate from the OP's situation. Didn't mean to confuse the issues.
zwaps 7y ago
Depends on where you are. In the EU, parts of contracts that sre against the law, which includes labor without payment, are invalid and you are free to sign it. In this case, giving up IP you made in your free time requires a new contract, because the law also requires a purchasing contract to have clear parameters https://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html https://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrec...

Some states (don't know in USA, speaking from EU) have laws against "unfair clauses" which make those automatically null even if you accept it. Usally the point is that for each clause in a contract which put an obligation on the employee, the employer must "give something back" to repay for that obligation in equal terms. In this case in my state the employer should at least have paid for all the time out-of-work in which op worked on his IP, and with a rate established by op

terranoct 7y ago

Contracts state a lot of things that don't necessarily hold up. It's just words on paper. Sometimes they're even tenable in one area, then used in another state which disallows some claim or another. Employment contracts in particular are subject to a lot of restrictions and protections regardless of what the employer makes people sign, because labor laws.

clucas 7y ago

There are things that you can't contract away. An obvious example in the U.S. is that even if you have a contract saying you have to work for someone for no pay, forever, with no possibility of getting out the contract, it would be unenforceable because we, as a nation, have decided that slavery should not be legal. It turns out, many of these un-contractable issues involve the employer/employee relationship... another example: even if you sign a contract saying your employer doesn't have to pay you overtime, that provision would be thrown out if you challenged it, and would probably get the employer in trouble with various agencies, including the IRS. I am a lawyer, but I don't have experience in this field, and this is not legal advice (you have to hire me for that), but this issue seems like one that a court (depending on the state, no doubt) would find that it doesn't matter what the contract says, an employer can't own everything an employee does. To emphasize: this is NOT legal advice, don't rely on it, and you really should seek counsel if you are encountering this issue in real life.

umanwizard 7y ago
Sure, plenty of stuff is unenforceable in contracts. Is there any evidence that this particular sort of extremely common clause is in that set?
- clucas 7y ago
  The fact that the employer/employee relationship is so carefully controlled (specifically to limit the power the employer wields over the employee outside employment) is what makes me suspect that at least some jurisdictions would decline to enforce an employment contract provision that gave the employer ownership over all IP the employee produces, even if the IP is produced off-hours, without use of the employer's equipment, and not having any relationship to the employer's business. Again, I don't actually know for sure - I'm not an expert in this area of law. But I think there is enough evidence in the rest of (U.S.) employment law jurisprudence to indicate that it's not open-and-shut in favor of the employer.
  - goatherders 7y ago
    At issue is he says that what he created is within the realm/market of his employer. That would be akin to an Intel engineer saying "I designed another microchip for computers but I promise I was doing this for me and not for Intel so its mine." You cant do some work on specific sector A for your employer and then do some other work in specific sector A on your own and now expect the employer to ask, justifiably, "who decided the dividing line here?"
    - clucas 7y ago
      My apologies, I was responding to the question about why a court would find an employment contract provision unenforceable - we don't know what the OP's employment contract states (or if he even has one), so I was treating this whole line of inquiry as separate from the OP's situation. Didn't mean to confuse the issues.

zwaps 7y ago

Depends on where you are. In the EU, parts of contracts that sre against the law, which includes labor without payment, are invalid and you are free to sign it. In this case, giving up IP you made in your free time requires a new contract, because the law also requires a purchasing contract to have clear parameters https://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html https://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrec...