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  • 1. PLS 780 Week 6
  • 2. Agenda • Discussion: Technology and the work environment • Employment and the law in the tech sector • Employment agreements • Invention assignments • Non-disclosures • Non-competes • Forfeiture agreements • Non-solicitation agreements • Employment separation • Executive employment agreements
  • 3. 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 of immigrants?
  • 4. Technology and the hunt for talent • Legal issues arise from the get-go • Visitor’s confidentiality and non-disclosure agreements • Anti-poaching or collusion (Todd v. Exxon) • Is anti-poaching inherently non-competitive?
  • 5. Employment verification and eligibility • 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 complexities • What should policy look like? • Who should bear the burden here? The employee or the business (Appendix 9 I-9)
  • 6. Employees and their rights • 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 changes?
  • 7. 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 employees • Must comply with employment law and wage and hour law • Work for hire as a special subset defined by copyright law (Circular 9 reprinted in Appendix 10)
  • 8. State v Kirby • Facts • Issue • Holding • Rule • What does State v. Kirby tell us about managing subcontractors and work for hire employees?
  • 9. Unpaid interns • 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…
  • 10. 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 percent • Good policy? Why or why not?
  • 11. Foreign workers outside the US • Outsourcing • Off-shoring • Supply chain manufacturing partners • What rights and duties should govern the relationships with these workers? If any…
  • 12. 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?
  • 13. Post employment • Former employees also have rights and duties • Governed by contractual agreements • Termination doesn’t always end the relationship
  • 14. Intel v Hamidi • Facts • Issue • Holding • Rule
  • 15. Employment Agreements • Like all contracts, these represent an effort to formalize relationships based upon a bargained for exchange • Policy issues are oftentimes front and center due to disparate level of power in the bargaining process. What does this mean?
  • 16. Invention Assignment Agreements • IAA • 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 employee
  • 17. Mattel v MGA • Who owns Bratz? • Facts • Issue • Holding • Rule
  • 18. Non-disclosures and non- competes • 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 scope • Must protect a legitimate interest of an employer • California generally considers them void
  • 19. Google v. Microsoft • Facts • Issue • Holding • Rule
  • 20. Forfeiture agreements • 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?
  • 21. Viad v. Houghton • Facts • Issue • Holding • Rule
  • 22. Stock options • 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
  • 23. US v. Reyes • Facts • Issue • Holding • Rule
  • 24. Separation agreements • 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 upon consideration?
  • 25. Executive employment agreements • Different form rank and file contributors • Include bonuses, benefits, responsibilities, events that trigger terminations, conditions for resignation