• Discussion: Technology and the work environment
• Employment and the law in the tech sector
• Employment agreements
• Invention assignments
• Forfeiture agreements
• Non-solicitation agreements
• Employment separation
• Executive employment agreements
Digital immigrants v. natives
• The tension between these two groups plays out at
work in unexpected ways
• What do I mean?
• Can you think of examples where digital natives
might have expectations that are at odds with those
Technology and the hunt
• Legal issues arise from the get-go
• Visitor’s confidentiality and non-disclosure
• Anti-poaching or collusion (Todd v. Exxon)
• Is anti-poaching inherently non-competitive?
• Tech sector hires up to 10% of it’s employees form
outside the US
• Employment and immigration are two hotly
contested legal areas that abound in procedural
• What should policy look like?
• Who should bear the burden here? The employee or
the business (Appendix 9 I-9)
Employees and their
• Most employees are at-will; What does this mean?
• Why is the US different from most industrialized
countries on this notion of at-will employment? What
policies are being served?
• Handbooks govern the relationship between
employees and employers
• What tech related issues must find their way into
employee handbooks? How often should they be
updated in order to accommodate technology
Subcontractors and work
for hire professionals
• Extremely popular in the technology sector
• Non-employees contractually hired to perform
specific kinds of tasks
• Problems arise when employees are treated like
subcontractors or contractors are treated like
• Must comply with employment law and wage and
• Work for hire as a special subset defined by
copyright law (Circular 9 reprinted in Appendix 10)
State v Kirby
• What does State v. Kirby tell us about managing
subcontractors and work for hire employees?
• Big part of the tech landscape
• Numerous legal issues here
• Why could the predominance of unpaid interns
undermine fair labor standards/wage and hour law
in the US?
• Is there anything inherently wrong with unpaid labor
in return for experience?
• What does legal compliance look like? (Appendix11)
• What about state laws? Oddly there really aren’t
many if any…
Foreign workers in the US
• H1-B program
• Restrictive employment; no movement (within
company or without)
• Allows businesses to hire employees when they
can’t find qualified employees in the US
• Lottery with no one country receiving more than 7
• Good policy? Why or why not?
Foreign workers outside
• Supply chain manufacturing partners
• What rights and duties should govern the
relationships with these workers? If any…
The term of employment
• The handbook is a contract
• Fiduciary duties
• Duty of loyalty
• Duty of care
• What special role does technology pay in each of
these duties? Especially when secrets and
processes can be shared so easily via technology?
• Former employees also have rights and duties
• Governed by contractual agreements
• Termination doesn’t always end the relationship
• Like all contracts, these represent an effort to
formalize relationships based upon a bargained for
• Policy issues are oftentimes front and center due to
disparate level of power in the bargaining process.
What does this mean?
• Employee invents; Company owns
• Covers work created while an employee
• The employee essentially assigns all rights and
duties that come from the invention to the employer
• Issues can arise based upon the nature and scope
of the work, the assigned rights, the role of the
Mattel v MGA
• Who owns Bratz?
Non-disclosures and non-
• NDAs and NCAs
• Varies by jurisdiction in terms of enforcement
• Non-competes are the most litigated. Why?
• To be enforceable must be limited by time, place and
• Must protect a legitimate interest of an employer
• California generally considers them void
Google v. Microsoft
• Very powerful tool for managing tech employees
• You leave, you lose
• The thing you lose: Stock options
• Most jurisdictions have absolutely no problem
enforcing these. Why?
• The right to buy shares in the company at a
predetermined ‘strike’ price oftentimes well below
the market value
• Right, not an obligation
• Important tool in an industry that is very dependent
upon human capital rather than physical assets
• Potential for abuse via securities fraud is very real
• What should these look like?
• What should the goal be in terms of policy? What
should be enforceable? What shouldn’t be?
• What role should future cooperation in return of for
things like severance play?
• Are these truly bargained for exchanges based
• Different form rank and file contributors
• Include bonuses, benefits, responsibilities, events
that trigger terminations, conditions for resignation