employment agreement

Sharon Vinick discusses corporate demands for projects created by employees after work hours

LVBH partner Sharon Vinick was interviewed for a recent article in The Register regarding contracts that purport to give corporations the right to intellectual property created by employees, even on projects created on personal time.

The Register, a global online technology news publication, wrote about a recent effort by Amazon Game Studios to force employees to grant them the right to all intellectual property created while working for the company, even if the work was done on personal time. While Amazon Game Studio has withdrawn the contract terms, questions have arisen about the legality of the contract provisions. Ms. Vinick opined: “… while Amazon Game Studios is based in Washington State, its agreement likely wouldn’t work in California, where the state’s Labor Code section 96(k) empowers the California Labor Commissioner to investigate wages denied as a result of lawful conduct outside of work.”

With an increase in employees working from home, the lines can sometimes get blurred between employment and personal creations. “I do think you’re going to start to see a lot more of these as remote working expands,” Ms. Vinick said.

Wendy Musell Interviewed on Trend in Tech Industry Pay Cuts

Computer screen with virtual meeting — Photo by Chris Montgomery on Unsplash

The Daily Journal interviewed LVBH attorney Wendy Musell to gather her expert opinion for an article about the trend of technology industry employers introducing pay cuts for workers who have left the Bay Area.

Employers often include cost of living expenses in their compensation packages. As the majority of workers are working remotely, some have chosen to move to regions with a lower cost of living. California employers have increasingly been reducing the pay of these at-will employees. Ms. Musell cautions that employers need to be wary that the cuts are not violating employee rights laws such as the Equal Pay Act and the Fair Employment and Housing Act.

Can My Employer Stop Me From Going to Work for a Competitor?

You’ve spent years working in a particular industry. You’ve gained lots of experience in your field. You’ve been working for your current employer for a few years, and have decided that it is time to get a new job. (Maybe you want a new job because you don’t like your boss, or you think you can make more money in another company. The reason doesn’t matter.) But, you seem to recall that when you started your job, you signed some type of a “non-compete” agreement. Is it enforceable? Can your current employer stop you from going to work for a competitor?

Well, if you are fortunate enough to be employed in California, the answer is NO, your current employer cannot stop you from going to work for a competitor. Under California Business and Professions Code Section 16600, unless you were an owner of the business, any “non-compete clause” which forbids an employees who is fired or resigns from working for a competitor or starting a competing business is illegal and unenforceable. Sadly, if you work outside of California, the law can be quite different, as many states will allow an employer to enforce non-compete agreements, even for employees who lack specialized skills (like janitors and fast food workers).

Although non-compete agreements are unenforceable in California, confidentiality agreements are enforceable. This means that when you leave your job with Big Company A, and go to work for a competitor, you cannot take any documents, technical information or specifications, plans or specialized knowledge with you. If you know how the “secret sauce” is made and you take the recipe to a competitor — even if the recipe is just in your head, rather than on a piece paper — Big Company A will can sue both you and your new employer, and will probably win.

So, if you work in California and you are tired of your job, go ahead and find a new one, even with a direct competitor. But, don’t even think about taking any confidential information with you.