> many-to-most of these clauses are in every boilerplate contract
Contracts are entirely negotiable. If there's a job you want, but the contract contains an objectionable clause, tell them that you're willing to accept if they strike that clause. If you're at the point in the hiring process where they're showing you the contract, that means that they've sunk resources into you that they don't want to throw away. And the fact that these clauses are boilerplate, as you say, works in your favor, because nobody involved in the hiring process consciously chose to put that clause in and they probably don't really give a damn.
> because nobody involved in the hiring process consciously chose to put that clause in and they probably don't really give a damn.
Yes but I think I didn't convey my point enough. Nobody involved in the hiring process cares, and if it's a good company they probably agree with you. But this standard contract is what they paid attorneys good money to comb over with a fine tooth comb for liability, and eventually sign off on.
Very very very few companies are going to go pay Expensive Law Co. (TM) $500 per hour to review changes to the contract just because _one_ potential hire who still might not even accept the offer says they won't accept if that's in it. It's way out of most recruiters or engineering managers that you might be interfacing with to make that happen, not to mention making their life way harder. Heck even a startup CTO might balk at having to go spend more on legal.
I have had clauses similar to the "we own everything you do 24/day" one and I've pushed back on all of them. Every time, the response is "yes we totally understand but we have no power to change the wording in this contract we use for every single employee" and it just comes down to a gut judgement call on my part on if I feel they will actually screw me over on that point.
Again to emphasise, I totally agree logically with author's and your points. But it's simply not realistic to approach job hunting that black and white unless you're comfortable being out of work for months until you find the perfectly-flexible-enough company.
They’ll tell you that this is unchangeable, it’s the default, etc the first few times, but if you persist, they’ll usually just strike out a clause like this if they actually want to come to an agreement. They may not even bother telling legal (depends on company size).
Really it depends whether you’re negotiating from a position of strength and and can walk away, if you are changes like this become possible, if you are not changes are more difficult.
I've never had any HR person give up even a comma in a contract like this, even after a full week of back-and-forth negotiating and trying to get them to strike out an individual sentence or change a word. Their attitude is that even if they lose their first choice hire over it, they always have a pipeline, and they'd rather adhere strictly to legal protocol and go with their second-choice hire.
> Very very very few companies are going to go pay Expensive Law Co. (TM) $500 per hour to review changes to the contrac
If they are already hiring "Expensive Law Co." then most likely they have them contracted anyway. Even with big corporations, there was never an issue with this. They were always happy to send my changes to their legal team for review and also allowed me as much time as I needed to review and consult my own legal team (if I had one).
It is in their and my interest that the contract describes the relationship in a way we both want and it is fair for both sides.
> "yes we totally understand but we have no power to change the wording in this contract we use for every single employee"
Had that too. Just be persistent and firm. "I can't sign the contract with these clauses in." 100% of the time they would eventually change their mind.
It may be bad for them that the clauses will be gone, and they need to show their employer they put up a fight and also it would be much worse to lose resource that otherwise was ticking all the boxes.
The issue is in smaller companies that don't have standing contracts with Expensive Law Co, and can't afford to even pick up the phone to ask them a question unless they're in serious need.
Nobody is going over a contract with legsl just because they removed the ‘we own everything you make’ clause. That’s an irrelevant part of the contract.
At big companies they will not change the contract for a single candidate. No way. Not unless it's a "big deal" sort of job where the executives are involved. They'll just tell you to go pound sand.
The correct course of action is to cross out the clause, put your initials next to it, then sign the document. It is the responsibility of the company to have someone review contracts for such things but they never do; they just collect all the documents, check they're signed, and file them away to be forgotten about forever (or until a lawsuit requires they be retrieved).
I've done this at several employers! I even tell the HR people what I'm doing so they can't claim they're being misled. Not once have they ever understood what I was even talking about or even cared. It's because they're HR people; not lawyers. They just "follow the script" as it were.
One woman at HR said that what I did--crossing out the "we own everything you make while you work here plus a year afterwards" clause--was a "very good idea" and just took my documents and filed them away like anyone else's. I even offered alternative language that would be fair along the lines of, "we own everything you make using company resources in your official line of work" but she wasn't interested.
A lot of HN folks make stuff and these invention clauses are completely ridiculous. If you invent a new kind of apple peeler in your garage on a weekend using your own tools it is absolutely unconscionable that your employer who pays you to do programming or management work could claim ownership of that thing. Even if the contract says as such I seriously doubt any court would enforce that unless you worked at a manufacturer of apple peelers.
This. You always have the power to change the proposed contract to suit your needs, and let them balk if they don't like it. This assumes it's a contract you can actually edit (whether on the computer or mark up with pen); for non-editable things (e.g. DocuSign contracts), I'm not sure what you'd do if you can't print it out pre-signing.
For the latter, I've sent them a "diff" over email containing the changes I required before signing. They didn't accept any changes to the document itself, but they did let me create a separate document with clarifying language.
My experience in the USA is that they will flatly refuse to change anything in the contract, and will tell you to take it as-is or walk away, in part because they feel like they can't make changes without getting it re-approved by legal first.
I've had the opposite experience. There was always a bit of hand-wringing about "oh, but this is the contract approved by our legal consultants...", but pointing out the fact that A) this clause is flatly impossible to enforce in my jurisdiction and B) it would be immensely silly to blow up this entire hiring process over a contract clause that, best case scenario, would involve them having to sue me and lose to enforce has always made the hiring manager sign off on the reasonable modifications.
Of course, if the clauses are enforceable in your state, it might be a different matter, but that's also an opportunity to make demands. "Sure we agreed to $XXX,XXX , but there was no mention of a noncompete. That's going to need $XXX,XXX+$YY,YYY or $Z weeks of vacation". Make the numbers bigger than you think is reasonable, and they'll probably cave on the contract clause. Or they'll compensate you for it. Win/Win.
They don't give a damn, but every time I've asked for changes to contracts, including positions I was actively recruited for by the hiring manager, once even by the owner of the company, I'm told to sign it or no job. In the case of the owner asking me to apply, they literally said "My lawyer says to leave it in, you're not a lawyer, it's staying in."
I'm sure some people have negotiated these things but I've tried multiple times - to shorten noncompete lengths, to remove the "anything you do on our machine is ours for all time" stuff, etc - but never had any success.
"My lawyer says to leave it in, you're not a lawyer, it's staying in."
The response there is "Well you aren't a lawyer either, and mine said it needs to go".
As others here have said, crazy clauses can go. One key point, make it clear it is about unduly restricting right to income in the future, without wanting to screw over anyone.
This is why a second response, such as "Well, if you triple the salary ... maybe" makes a point here.
Some contracts literally make it impossible for you to work in the future, in your field. That means 'gimme retirement salary on exit' minimum.
(Such broad clauses are rarely enforceable, you can't prevent a person from working at all, but... )
They will 100% let you walk over this. And then what? Your next offer will be the same, and so on. Market forces don't work if every agent on one side of the market does exactly the same thing.
In 20 years, I've never seen a company that was willing to negotiate over the employment contract of an employee. As a freelance consultant, I had free range to negotiate, but as an employee, the contract was always presented as "take it or leave."
I've done it a couple of times. Recently I started a new job where they had a "we own all of your IP you create at any time" clause, which is ridiculous. They agreed to change it to only include IP related to their normal business which I think is fairly reasonable.
That's probably because most people don't even think about it or bother trying. They may not even read the agreement!
I've successfully negotiated contracts several times in the past. Even once at a big company (that I knew was desperate :). As long as what you're asking for is reasonable they'll usually make the change unless it's a really big company. In that case they're not going to bother and just tell you to either sign it or go to work somewhere else. They know they have plenty of leverage and there's always someone else they can hire.
I've negotiated literally every employment contract I've ever signed. Hiring people is expensive, and by the time you've found someone you're willing to extend an offer to, there's a lot of sunk cost. That, my friend, is called "leverage".
Contracts are entirely negotiable. If there's a job you want, but the contract contains an objectionable clause, tell them that you're willing to accept if they strike that clause. If you're at the point in the hiring process where they're showing you the contract, that means that they've sunk resources into you that they don't want to throw away. And the fact that these clauses are boilerplate, as you say, works in your favor, because nobody involved in the hiring process consciously chose to put that clause in and they probably don't really give a damn.