fnf@mcdsun.UUCP (08/30/87)
This really belongs in misc.legal, lets try to move it there... Note to misc.legal readers: This thread started in comp.sys.amiga with a situation in which an employee of DEC has apparently been notified that release of the results of his off duty hacking on the Amiga computer violates a conflict of interest provision in his employment agreement. I won't comment here on the relative merit of DEC's stance since I don't know the details of the employment agreement or of the employee's duties. But I'd like to comment in general on what to watch out for to avoid problems such as this. Since this discussion really doesn't belong in comp.sys.amiga, I've posted this message in misc.legal, with follow-ups there, but cross posted to comp.sys.amiga so the original participants in the discussion would see it. Some hints and rules for avoiding problems with conflict of interest and invention assignment provisions in an employee agreement: (1) Negotiate your agreement. First rule is to know what you are getting into when you become a new employee. Request in writing copies of all employment agreements you will be required to sign at your new job BEFORE accepting a job with a new employer, and certainly BEFORE relocation. Some employers will conveniently forget to mention these agreements until your first day of work, and then depend upon the vulnerability of your position to work in their favor towards getting you to sign something contrary to your own best interests. The time to negotiate an acceptable agreement is BEFORE you commit to a job change. (2) Know the laws of your state. Know the laws of your state if the agreement tries to be unreasonably restrictive. Many states have provisions in their legal code regulating what can and cannot be required. As an example, from the California legal code: California Labor Code Section 2870 Article 3.5 Inventions Made by An Employee 2870. Any provision in an employment agreement which provides that an employee shall assign or offer to assign any of his or her rights in an invention to his or her employer shall not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, and (a) which does not relate (1) to the business of the employer or (2) to the employer's actual or demonstrably anticipated work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and to that extent void and unenforceable. (3) Avoid obvious conflicts. Try to channel your creative energies towards areas which do not directly relate to your job duties or those of your immediate associates. For example, if you work for a company that develops database applications, and you have your choice of off duty hacking on database systems or digital signal processing algorithms that interested you when you were in school, pick the one that seems obviously unrelated to anything you are being paid to do. This is probably one of the hardest rules to follow since it is only natural for most computer enthusiasts that enjoy their work, to continue that line of development in their hacking at home. Since such work could potentially be very beneficial for both the employer and employee, it is sometimes worthwhile to try to work out some sort of agreement about the results, if you really want to pursue areas of development that you don't have time for during your normal work day. This is also especially important if you find that your most creative work is done at home, outside the stress, distraction, and deadlines of the workplace environment, since this is most likely where you will make "breakthrough" inventions or discover that algorithm that triples the previous speed of your employers product. (4) Be upfront with your employer. Be upfront with your employer that you have the means and desire to pursue development of potentially marketable software products at home, but that you will abide by your agreement with respect to conflicts of interest and non competition. You may be able to hide your development activities as long as everything you do remains private. In that case, why bother doing anything if you can't share it with the world via public domain or freely redistributable release, or via release as a commercial product. You are a paid professional, not a company slave or indentured servant. Open communication and cooperativeness are the keys to a workable situation, unless you have a totally unreasonable and tyrannical employer. -Fred -- = Drug tests; just say *NO*! = Fred Fish Motorola Computer Division, 3013 S 52nd St, Tempe, Az 85282 USA = seismo!noao!mcdsun!fnf (602) 438-3614