Snafu in a developer employment contract? Advice pls

Question

Background: I'm fresh out of school with only solo contract development while I was going to school, so I've never worked as a developer for a company.

So I've applied for a position at a company as a (jr) software dev. I had the interview, it went well, references checked out and the company wants to hire me. Yay me! I get the employment contract, and having read Joel's NDA/Contract article amongst other things, I really paid attention to the employment agreement contract, and noticed that one of the bullet points essentially says that I can't do any kind of work, in any way, paid or not at all without written consent from the employer.

I responded saying that I had a personal project - an xna game, which was my univ senior practicum, that may never get finished, but that's not the point - that I would need consent to continue working on, and any work(s) intended to support or promote it (like a website etc.). I explicitly noted that it would obviously be done on my own time, away from the work premises and using my own resources.

I received a response that said something to the effect that the clause is to prevent employees from burnout or fatigue, decreasing productivity while at work (as opposed to them responding with something like "oh sure, you can work on that - not a problem.")

So what kind of avenues do I have here? I'm far from having my door beat down for job offers these days, and I'm bordering on dirt poor. Haggle the clause and maybe negotiate myself out of a job? Take it anyway? Take it and earn $ while looking for a new job? Anything else?

Edit> I should point out, as some have brought it up: This is separate from non-competition section of the agreement.

Answer 1

This smells to me like the kind of contract that companies like to make their employees sign, but which would be laughed out of any court in the land.

Were I in your shoes, I'd probably continue working on my game, taking special care to make sure it didn't interfere with my paid work.

The better paranoid legal advice is probably to just press them until they give you written permission to work on your game so long as it does not impede your work performance. Certainly, I would make the argument that programmers are more likely to burn out when they are prevented from leisure work, not the other way around.

Answer 2

I find that is an extremely unusual provision in a contract. Usually the company wants to own anything you develop outside of work, not stop you from working on outside projects on your own time. My guess is that this is a clever way to always ensure they have cause when they fire you, as almost every developer has personal projects they work on.

Are you certain this is not a "non-compete" clause in disguise?

Anyway, as long as they are not claiming ownership of your personal projects and not trying to extend this beyond the point that you leave the company, it's rather harmless. In this economy no job is permanent, and from what you've described, the worst they can do is fire you. Big deal.

Answer 3

I've dealt with these before.

Know your priorities.

Be firm.

Unless you really need the money, tell them the clause goes or they need to look for someone else.

Answer 4

I don't know about the burn-out bit. Maybe the company is trying to prevent you from using the skills you got at the work-place in projects that may compete with them. In IT industry, development firms have a lot of paranoia, and trust me, a lot of it is justified. If you're looking for a long-term career in this industry, make an effort to be on better terms with your employer and reason things out. If you're a good asset with honest intentions, companies do make compromises on their policies.

Talk to your HR manager and explain the problem to him in detail. It would help you staying hired -- a very important status if you want to make it through the depression economy in one piece.

Answer 5

I've had a situation where a company wanted to include the usual clause about them owning any and all intellectual property I develop during my time with them. This included anything I did on my own time.

I pointed out that this was a double standard, because they're specifically hiring me based on the intellectual property I bring to them as a seasoned professional programmer.

A short and very friendly discussion followed, and the clause was removed. I happily signed after that.

If the people running the company in question are at all reasonable, you should be able to have a similar discussion. If not, maybe they're not the company to work for.

Answer 6

I have never seen a clause that restrictive. I wonder if you've misinterpreted it, it is good you followed up for clarification.

Do not sign it without the clause removed. When you talk to them, have some positive points you can discuss about the work situation that you recalled from the interview. But then remind them that you can't do it with that clause.

I've had employers who will take careful suggestions to remove/adjust clauses in the employee agreement without any more than a few days turn-around. You should expect that level of attention. You are making an important decision for you and them and they should appreciate you putting serious consideration into it.

That said, if this really is the only chance you can find, it may be worth it. You can measure the risk. What do you have to lose? Look in the contract for what restrictions that apply after you leave the company. Thats what you have to lose.

The restriction you mentioned, it sounds like it might expire when you leave the company. If thats the case, its a limited risk. If there are benefits they are going to charge back (pay attention to the freebies) that is another limited risk. If you will be restricted in companies you can begin to look for, or if you lose intellectual properties, that is not a limited risk and should be treated with greater concern.