RE: [PLUG] intellectual property, code, employment laws, etc

["mike.h" <mike.h@stemik.com>]

I find it amusing that, in a profession where knowledge and intellect are
supposedly highly valued, companies still expect programmers to sign such
bile. Some do. The company that submitted it to me for my approval, is in
fact, fairly sizeable.

Of course, if one is truely desperate, he may sign and choose to contest the
legality after the fact. As Mr. Magill points out, contradictions in the
contract would probably invalidate at lease some of it should a legal
challenge be mounted. But I would not recommend such an approach for 2
reasons:

1. Many will have to stand up and repudiate such evil before things will
begin to change. When no one smart enough to do the work will willing sign
such a document, the companies will be forced to reconsider ... lawyers or
no.

For my part, there are so many things wrong with it, that anyone who would
proffer such a contract cannot be trusted in any way. And that leads to the
second reason:

2. You may never be paid, and acceptance could even COST YOU MONEY

...and thus my outright rejection, not only of the contract, but of the firm
which submitted it.

I apologize for the rant, but as you might have guessed, I'm rather
passionate about this particular assault upon the rights and liberties of
American working people, and would like nothing more than to rouse others to
resist. So long as people acquiesce, unfair labor practices will multiply in
number and escalate in severity.

-mike.h

-----Original Message-----
From: plug-admin@lists.phillylinux.org
[mailto:plug-admin@lists.phillylinux.org]On Behalf Of William H. Magill
Sent: Saturday, January 04, 2003 3:57 PM
To: plug@lists.phillylinux.org
Subject: Re: [PLUG] intellectual property, code, employment laws, etc


Without a doubt, one of the nastier pieces of legal "boilerplate" I
have seen in quite a while.

On Saturday, January 4, 2003, at 01:27 AM, mike.h wrote:
> , the Sub-Contractor shall be paid as compensation for services thirty
> days
> following Contractor?s receipt of invoice (2/10 net 30).
....
> The fees for the services provided are to be outlined in a Task Order.

I love these two provisions -- you think you will receive a fixed fee
for a service. But you discover that they can pay less than that if
they want... This means that you can't include the discount in your
pricing because it has already been "negotiated" out. 2/10 net 30 is
seriously out of place in such a contract. It's a manufacturer's volume
discount game and has no place where pre-defined or pre-negotiated fees
exist. A more correct invoicing  scheme is simply a 2-5% penalty for
payments RECEIVED after 30 days.

> Section 14. Remedies.  The parties agree to the reasonableness of the
> restrictions in the covenants set forth in Sections 4, 5, 6 and 7
> above and
> acknowledge that they have been negotiated at arms-lengths, and they
> agree
> that such restrictions shall be legally enforceable and shall not be
> challenged by the Sub-Contractor in any court proceeding.

This reminds me of the old "Confession of Judgement" clause that was
ruled illegal in Pennsylvania "standard form leases." I especially love
the phrase "negotiated at arms-lengths." It would be interesting to
find out what if any option you had to change anything in the
boiler-plate. Such things are normally "sign or walk" entities; no
negotiations are accepted. Or put another way, you can ask for all the
changes you want, but they will be simply refused, usually "because the
lawyers won't let us change them."

> Section 17. Independent Contractor.  The Sub-Contractor shall be
> deemed for
> all purposes to be an independent contractor and not an employee and
> shall
> not participate in any employee benefit program of the Contractor by
> reason
> of this Agreement or the relationship between the parties created by
> this
> Agreement. . . .

Here we get to the meat of the contract... and really its only reason
for existance -- the avoidance of responsibility in an employer/empoyee
relationship.

Another contradiction I love....Section 16
> (b) No Third party Sub-Contractor may be used by the Sub-Contractor
> without
> prior written approval from the Contractor.
. . .
Section 17
>  The Sub-Contractor will retain sole
> and absolute discretion and judgment in the manner and means of
> carrying out
> Sub-Contractor's activities and responsibilities hereunder.

Section 16 guarantees that the "sub contractor" does not have sole and
absolute discretion, and that even though the contractor is violating
the law, further in section 17, the sub-contractor agrees to pay for
the criminal defense costs of the contractor when the IRS comes calling.

A very evil contract for sub-contracting indeed!

T.T.F.N.
William H. Magill
magill@mcgillsociety.org
magill@acm.org
magill@mac.com


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_________________________________________________________________________
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Announcements - http://lists.netisland.net/mailman/listinfo/plug-announce
General Discussion  --   http://lists.netisland.net/mailman/listinfo/plug