This document provides an agenda for a discussion on employment and technology law issues. It outlines several topics that will be covered, including employment agreements like non-competes and invention assignments, employment eligibility verification, employee rights as at-will workers, issues around unpaid interns and foreign workers, and post-employment obligations and agreements like non-disclosure agreements and separation agreements. It also briefly summarizes several relevant court cases on these topics like Intel v. Hamidi on former employee rights and duties and Mattel v. MGA on invention ownership.

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