Pls 780 week_6


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Pls 780 week_6

  1. 1. PLS 780 Week 6
  2. 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. 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. 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. 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. 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. 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. 8. State v Kirby • Facts • Issue • Holding • Rule • What does State v. Kirby tell us about managing subcontractors and work for hire employees?
  9. 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. 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. 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. 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. 13. Post employment • Former employees also have rights and duties • Governed by contractual agreements • Termination doesn’t always end the relationship
  14. 14. Intel v Hamidi • Facts • Issue • Holding • Rule
  15. 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. 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. 17. Mattel v MGA • Who owns Bratz? • Facts • Issue • Holding • Rule
  18. 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. 19. Google v. Microsoft • Facts • Issue • Holding • Rule
  20. 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. 21. Viad v. Houghton • Facts • Issue • Holding • Rule
  22. 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. 23. US v. Reyes • Facts • Issue • Holding • Rule
  24. 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. 25. Executive employment agreements • Different form rank and file contributors • Include bonuses, benefits, responsibilities, events that trigger terminations, conditions for resignation