Hi all,
I had an interview recently where my prospective employer wanted to me to sign something promising I wouldn't do any web design work outside of their company, i.e. no freelancing.
Are they allowed to do that? Surely if it's in my own time & doesn't interfere with my 9-5 I should be allowed to do as i wish.
If someone can think of a better place to ask this, please let me know (google was not my friend).
thanks,
Peter
Ya. They can also ask you to sacrifice your first born to Satan.
Say thank you and walk away.
Odds are you don't want to deal with them.
If your job relates to web design work, it can be a legitimate request, since there would be a conflict of interest. Your private clients and the company's clients can potentially overlap, or at least, the pool from which you both take your clients can.
If the work is unrelated, you should ask them to explain why they want you to sign such an agreement.
If you sign the contract, yes they can. Actually, in most places, if you don't sign a contract to the contrary, they technically own the rights to everything you create related to your job (programming/web development) even if it is on your own time. Different courts have interpreted that to mean in your field, or in relation to what your company is developing, but do you really want to end up in court over your pet project?
I am from Canada, but I have worked in the UK. The laws there might be different, but I had that stuff in my contract too.
Do you really need this job? If you sign it, I wouldn't take the risk, or keep it really quiet.
Yes, they're allowed to do that. Many places will say that basically they own any intellectual property you come up with while employed by them, especially if it's anything like what you do at work.
If you want to argue it (and if they actually make you an offer) then it's worth negotiating before you sign anything. Many employers have template contracts but will be reasonable if you have particular concerns.
This is typically done to prevent you from competing with them. If you want to work there despite this, you should clear up any ambiguity before you start. If your freelancing doesn't interfere, or you have existing clients, you should get an agreement that specifically mentions those pre-existing items. But, I AM NOT A LAWYER, so take this advice at your own risk.
My employer gives us an incentive to not do freelancing by offering a commission on any referrals.
Yes they can - and your contract probably has a section saying that they own any intelectual proterty you own outside work. How enforceable this is will depend on how closely your outside work matches your 'real' work.
Now the real problem - this is going to get decided in court by a judge. The judge is not going to understand that your web design work is different from your day job doing COBOL, to him it's all computer stuff.
If you're English and sign the contract then they certainly can - or at least if it comes to court then their pockets are a lot deeper than yours. Unless you absolutely need the job then stay away from that one.
Interestingly these sort of questions do depend on where in the UK you are. For example if you're a freelancer and do work for someone then by default it's classified as work for hire and the client acquires copyright if you're in England or Wales. By contrast in Scotland (where I am myself) you retain copyright and your client acquires a non-transferable royalty free license for your code. As a freelancer in Scotland myself this is amazingly useful as it means I have no issues reusing code from one project to the next.
Similar legal considerations apply in other areas - although superficially similar because we've been joined at the hip for 200 years, Scottish and English law are based on quite different suppositions (basically England was rich so Lawyers could always get to a Library to establish precedent, Scotland was poor and rural judges needed to be able to work things out from first principals), so it's always worthwhile checking who you're working for and under which jurisdiction the contract is signed.
tell them you do freelance web work for charities and would they really want you to stop building web sites that find homes for kittens and orphans and supporting the poor? ;-)
agree to a non-compete clause but not a blanket no-moonlighting provision
if they are unreasonable, and you really really need this job, take the job, don't freelance, but immediately starting looking for another job
If I were you, and you were definitly concerned about this cause in your contract, I would re-write your contract and send it back to them and ask if you can negotiate. Explain your reasons why you want the change and why it wouldn't affect the business. If the company wants you badly enough they may accept your modified version. If they turn down your request, then you'll just have to weigh up what you want - the flexibility of freelance, or this particular job. I may add that most contracts these days (in UK at least) will specify that they own any work you do, even outside of work times.
Non-compete clauses are quite common. I'm a freelancer so I tend to sign a lot of things when working for various companies. Most of them are non-disclosure agreements saying that I'm not going to sell company secrets, but occasionally, a really nasty subclause crops up...
Lots of places will want your full creative and networking input. Doing things at home in your free time might mean you don't do something at work, be that implement a feature that you want to put into an open source application or take on your own clients instead of routing them through the business.
Firstly, let them know it might be a problem. Let them know what you do and how you've fit it in around things in the past.
I've found it helps to let them know what it's worth to you. I had a client that almost had me signing an 12-month international non-compete agreement for developing any sort of CMS. Content Management Systems are my bread and butter so it really would have meant decimating my earnings for the 12 months after being employed by them. Once I explained that, they were happy to scrub the clause.
From an employer's perspective, there are two issues:
a) Conflict of interest. Assuming the contract says "no web design work", not "no work fullstop" then then it's not overly restrictive. Anyway, you haven't signed it yet. Negotiate if you want.
b) Conflict of time. I don't really want my employees to spend their down time working at other people's beck and call (i.e. in employment). I want them to turn up to work reasonably refreshed, and having two bosses is not going to help them do this. On the other hand, it's their life, and provided they perform excellently at work, then why should I complain if they want to practice their skills and get paid a bit for it? It may well benefit them,
The worst the employer can do if they find out is
a) fire you, and even then you might have a case for unfair dismissal if your performance was fine, though personally I think you should swallow it and leave.
b) sue you for breach of contract. But they can only sue for actual losses, which would be pretty hard to show unless you were somehow personally responsible for a contract falling through. Pretty hard to prove that one, even to the balance of probabilities required by a civil court.
--EDIT-- Perhaps I didn't make it clear that I am an employer and this isn't just a hypothetical viewpoint. I seem to have been downrated recently for this answer, apparently because people don't like it. It is, however, factual.
Regarding the complaint that it is no business of mine how employees spend their time outside work, I agree. But the commenter apparently didn't notice that I also said "it's their life". My concern is how they perform during working hours, and if their other activities impinge on that, then it is certainly my business.
They can only enforce it if you sign it because then it becomes a legal document. If they want you enough they will remove the clause, on the other hand if you want the job enough you will sign it :-)