I don't understand why in both contracts and legal communication (particularly threatening one), there is little to no consequence for the writing party to get things right.
I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". The employer is basically trying to enforce their rules (reasonable), but they have no negative consequences if what they write is not allowed. At most a court deems that piece invalid, but that's it. The onus is on the reader to know (which tends to be a much weaker party).
Same here. Why can a company send a threatening letter ("you'll go 20 years to federal prison for this!!"), when it's clearly false? Shouldn't there be an onus on the writer to ensure that what they write is reasonable? And if it's absurdly and provably wrong, shouldn't there be some negative consequences more than "oh, nevermind"?
> I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract".
This concept of severability exists in basically all contracts, and is generally limited to sections that are not fundamental to the nature of the agreement. (The extent of what qualifies as fundamental is, as you said, up to a court to interpret.)
In your specific example of an employee contract, severability actually protects you too, by ensuring all the other covenants of your agreement - especially the ones that protect you as the individual - will remain in force even if a sub section is invalidated. Otherwise, if the whole contract were invalidated, you'd be starting from nothing (and likely out of a job). Some protections are better than zero.
"Right-to-Work" refers to the inability of unions to negotiate closed shops, where all employees of that "shop" must be part of the union.
You're thinking of "At-Will" employment, which allows employees and employers to end an employment relationship at any time for any (except for the few illegal) reasons.
Right-to-work is about quashing union shops. You're thinking about "at-will" employment, which is the law of the land everywhere except Montana. But an employee contract overrides at-will employment: If your contract says your employer can't fire you, your employer can't fire you without being in breach of contract.
The employment of an individual that has an employment contract is governed by the strictest set of rules between the right-to-work state's laws and the employment contract. Literally every permissible provision of an employment contract can be a protection: golden parachutes, vacation days, sick days, payout of the same, IP guarantees for hobby work, employment benefits, etc.
Right to work at its most generic level means freedom from being forced into a union, not freedom from being held to a contract.
Nobody has these except top execs who are already in a huge position of power.
> vacation days, sick days, payout of the same
Nope, not anymore: nothing is guaranteed with "flexible time off". I literally cannot meet my performance goal if I take more than 1 day of sick/vacation day PER YEAR. Yes, my raises are tied to this performance goal. Yes, it's probably illegal, but who cares? Nobody is ever going to do anything about it. This is every company with FTO. Who gets "paid out" for PTO anymore?
> IP guarantees for hobby work
You're joking, right? Most employment contracts claim that they own the slam poetry you write on your napkin at 2:00 am on a Saturday while high on your couch. Every mention of IP in an employment contract is as greedy as possible.
> employment benefits
Ok but in a right to work state these can be terminated any time anyway.
Literally nothing about an employment contract is ever written in favor of the actual employee. Of course it's not: they wrote it. If every company in an industry does this and they all refuse to negotiate, workers have no choice but to sign it. It's crazy to me to think that a U.S. company would voluntarily ever do anything in the interest of any of its employees, ever. This is the whole reason why ambiguities are supposed to go in favor of the party that didn't write it. Voiding any part of an employee contract can therefore only ever benefit the employee (except possibly the part where they get paid). If you want protections for employees, look to regulation and unions, not contracts written by the employer.
I don’t know what to say in response to your complaints except negotiate better working conditions next time you get hired. The company wrote it. You accepted it. You can always ask for different terms and walk away if they don’t agree, start your own company, or change industries to one where companies are willing to negotiate.
If you want protections for employees, sure you can (erroneously, in my opinion) look to unions. If you want protections for yourself, look to negotiate.
> You can always ask for different terms and walk away if they don’t agree, start your own company, or change industries to one where companies are willing to negotiate.
I suspect you have lived a very privileged life if you really believe these options are actually open to most employees in the U.S. Switch industries? Start your own company? Those are both extreme life-altering multi-year responses to losing PTO payout, and only work for people who have major safety nets and support in their lives. Companies pull this bullshit because they know they can get away with it. Guess what: they're right. I'm glad you are in such a state of privilege that you can spend 4 years going back to college and switching industries without going into massive debt and without suffering from the loss of income during that time, but you are extremely lucky to be in that position. Do not assume others are lazy and/or stupid and/or bad negotiators because they can't. Negotiating is not about shaking hands harder, it's about having leverage, and 98% of U.S. workers have none.
> negotiate better working conditions next time you get hired
These were not the working conditions at the time I was hired. None of this was in any contract I signed. Companies change this stuff after-the-fact all the time. What are you going to do, hire an employment lawyer? You'd poison your own drinking well, potentially forever, with the possible upside of being the only employee in your company that actually get PTO paid out? Come on. Nobody is doing this. Companies pull this bullshit because they can.
I grew up what you’d call “lower middle class.” Your suspicions are incorrect. I’ve switched industries twice in my life to the tune of nearly a third a million in student loan debt. I know how difficult it is and how expensive it is, but the actual strength of some people’s personal convictions matches the strength of the convictions you pretend to have online. Just like you, the companies I worked at (and owned a portion of) changed or the industries I worked in changed, but unlike you I left (and forced them to cash out my PTO because, contrary to what you think, you do have an enforceable employment contract even if it’s in the form of a benefits package, an employee handbook, or even just “that’s what the company normally does” at that point in time) after realizing that the change was permanent rather than taking to the internet to complain while continuing to pull an easy paycheck.
It’s strange that the people who tell you how difficult something is are almost always people who haven’t done it and the people who tell you how privileged you are almost always are even more so themselves. Tell me, when’s the last time you swung a hammer or pulled unemployment benefits?
> I’ve switched industries twice in my life to the tune of nearly a third a million in student loan debt.
And you're actually suggesting this as a solution to others? That they lose years of income and take on $300k in non-dischargeable debt because their employer acted like a dick, in the vain hope that with this new degree, their new employers won't? Sorry, but "just spend years and take on $300k in student loan debt like I did" is just not compelling advice.
> the actual strength of some people’s personal convictions matches the strength of the convictions you pretend to have online
You're significantly upping the "personal attack" game here. You could just as easily say that I am the one with strong convictions, continuing to work at a company that treats its employees like shit because I actually do believe in the work that I'm doing there.
> It’s strange that the people who tell you how difficult something is are almost always people who haven’t done it
It's strange to you that the people who claim something is difficult are the ones who haven't been able to do it?
> Tell me, when’s the last time you swung a hammer or pulled unemployment benefits?
Not interested in a hard-knocks pissing contest. I assumed you wouldn't spend $300k in a game of Musical Diplomas in the hope of avoiding being treated the way most people in the U.S. are treated by most companies unless you had a significant safety net. I'm not sure what you're trying to prove by saying: no, you added it onto an already difficult life. My point is that this is not good advice.
1. Someone asked what protections an employee could expect to receive from an employment contract in a right to work state.
2. I responded that right to work is not related to employment contracts but to unions and listed a number of protections and benefits regularly covered by employment contracts.
3. You came in saying that, anecdotally, the benefits are either non-existent in your industry or only available to top executives and ending with a sort of anti-“corporate overlord” conspiracy about how every term in an employment contract is a negative to an employee because the employer writes the contract.
4. I told you that contracts are bilateral and therefore you should negotiate, start your own business, or quit.
5. You responded with the first actual personal attack by stating that even suggesting that someone negotiate, start a business, or quit meant that I came from a life of luxury and privilege and how my supposed privilege blinds me to the cost of quitting an industry before again going on an rant based on your specific situation (that you refuse to leave) and generalizing your refusal to negotiate, start your own business, or leave to “nobody” negotiating, starting their own company, or leaving.
6. I responded to your personal attack by noting that I don’t come from privilege, that I have changed industries, that it is possible to finance it via student loans, and that I have been in similar situations as you and taken a different path. I noted that some people’s actions match their espoused beliefs while noting that you don’t appear to be one of those peoples. I then made a snarky comment about how you seem to be the type to deem something hard before even trying it and to cry privilege while you stay at your cushy white collar job.
7. You responded shifting your argument from “nobody” does this to “nobody smart” (obviously, because you’re smart and you haven’t done it) does this (a strange argument on a website like HN given its relationship with startups…) and crying about personal attacks. Oh, and apparently you really love your job after all despite all the prior ranting about how much you hate your job. And apparently you don’t want to get into a who-has-privilege argument with me after all now that you know my background sort of undercuts your entire argument.
I will concede that "I suspect you have lived a very privileged life" was overly focused on you, and should have been something like "Nobody should seriously consider these options unless they are living a very privileged life". Your actual personal history is not relevant my argument at all and I shouldn't have brought it up. I maintain that most employees have basically zero leverage to negotiate their worker-hostile contracts, and that it is not a good idea to saddle yourself with $300k of non-dischargeable student loan debt in order to try to avoid a practice that is pervasive in the U.S.
> anti-“corporate overlord” conspiracy
It's not exactly done in secret. Would you call a feudal serf a conspiracy theorist if he was ranting about how the Dukes and Kings hold all the power? I'm lucky that I have more leverage than an Amazon warehouse employee but it's awfully hard to compare their working conditions to Jeff Bezos's situation and not call him a "corporate overlord".
> Oh, and apparently you really love your job after all despite all the prior ranting about how much you hate your job.
This is just getting boring. Yes, I both love and hate my job. So?
> "Nobody should seriously consider these options unless they are living a very privileged life".
> I maintain that most employees have basically zero leverage to negotiate their worker-hostile contracts
He's trying to tell you from direct personal experience - as are many others in this thread - that it is not as dire as you're committed to believing, and that it is absolutely possible to negotiate terms at a non-executive level.
To put it differently: the corporate overlords have successfully convinced you that you have no power.
You're on a forum for tech workers and tech entrepreneurs. Going "you're privileged, gotcha!" doesn't carry much water when it's true of literally the entire target demographic. You are right, we are lucky: our industry is in demand, so don't squander it by pretending you're up against insurmountable odds at the negotiating table. All you're doing by rolling over for your employer is weakening everybody else's negotiating position.
If my employer wants to change the terms of my employment, I absolutely would make sure I actually agreed to the changes before doing anything else. If I didn't I'd refuse to sign anything, and leave the employer with the choice to either A) fire me (under the terms of the old contract) B) leave me with the old agreement C) fire me under the new terms and get sued or D) come back with a better offer.
This is tech. There's no shortage of jobs for people with any experience whatsoever. That's leverage in not getting railed in your employment terms.
Because for all the bullshit I have to put up with, and all the things I hate about management, and all the things that could easily be better but for one asshole vice-president needing to cosplay Business Hero ... for all of that, the job is deeply interesting and I learn a ton every day. And virtually every other job on the market is mind-numbingly boring and pointless.
And because I like my immediate teammates a lot.
And because the issues I'm railing against are incredibly pervasive in most companies in the United States and probably beyond. Our capitalism has been completely taken over by a caste of parasitic leeches who enshittify everything they touch and I am under no illusion that any other job would be any different.
But I do also look for other jobs regularly. Finding a job that is both interesting (<1%) and not full of shithead management (<5%) is about 1 in 2,000.
Employment contracts can govern firing. You can have a contract that says can only be fired for cause and get one month of notice for other dismissals.
Actual employment contracts are rare in the US. I think because don't want legal hassle for most employees, but executives and other important employees have contracts.
Other countries have contracts for every employee. I assume they use a standard contract for most employees, and that the laws limit the scope.
An employment contract is intended to backstop everything you were promised or negotiated during the hiring process. It doesn't really matter if you're in a right-to-work state or not, an employment contract provides you with recourse if the terms are not upheld by your employer. In the case of a breach, that is something you can remedy in court. (Whether or not it is worthwhile to pursue that legal case depends entirely on the context)
* anything you negotiated during hiring like RSU or sign-on bonuses
* stating your salary, benefits, vacation is the basis for protecting you from theft of that compensation.
* IP ownership clauses can protect your independent, off the clock work
* work location, if you are hired remote and then threatened with termination due to new RTO policies
I am just pulling from the top of my head general examples.
> "if any piece of this contract is invalid it doesn't invalidate the rest of the contract".
Severability (the ability to "sever" part of a contract, leaving the remainder intact so long as it's not fundamentally a change to the contract's terms) comes from constitutional law and was intended to prevent wholesale overturning of previous precedent with each new case. It protects both parties from squirreling out of an entire legal obligation on a technicality, or writing poison pills into a contract you know won't stand up to legal scrutiny.
If part of the contract is invalidated, they can't leverage it. If that part being invalidated changes the contract fundamentally, the entire contract is voided. What more do you want?
It seems like you're arguing for some sort of punitive response to authoring a bad contract? That seems like a pretty awful idea re: chilling effect on all legal/business relationship formation, and wouldn't that likely impact the weaker parties worse as they have less access to high-powered legal authors? That means that even negotiating wording changes to a contract becomes a liability nightmare for the negotiators, doesn't that make the potential liability burden even more lopsided against small actors sitting across the table from entire legal teams?
I guess I'm having trouble seeing how the world you're imagining wouldn't end up introducing bigger risk for weaker parties than the world we're already in.
Practical example: your employment agreement has a non-compete clause. If 3 years later non-competes are no longer allowed in employment contracts, you won’t want to be suddenly unemployed because your employment contract is no longer valid.
You’ll want the originally negotiated contract, minus the clause that can’t be enforced.
Thanks for the explanation and the term "severability". I understand its point now and it makes sense to have it conceptually. I also didn't know about this part:
> so long as it's not fundamentally a change to the contract's terms
However, taken down one notch from theoretical to more practical:
> It seems like you're arguing for some sort of punitive response to authoring a bad contract?
Not quite so bluntly, but yes. There's obviously a gray area here. So not for mistakes, subtle technicalities. But if one party is being intentionally or absurdly overreaching then yes, I believe there should be some proportional punishment.
Particularly if the writing party's intent is to scare out of inaction more than a core belief that their wording is true.
The way I think of it is maybe in similar terms as disbarring or something like that. So not something that would be a day-to-day concern for honest people doing honest work, but some potential negative consequences if "you're taking it too far" (of course this last bit is completely handwavy).
Maybe such a mechanism exists that I'm not aware of.
I do like the idea theoretically as a deterrent against bad actors abusing the law to bully weaker parties - but the difficult part is in the details of implementation: how do you separate intent to abuse from incompetence?
Also confusing the mix here is who you are punishing when violations are found - is it the attorneys drafting the agreement? They're as likely to be unaffiliated with the company executing the contract as not, not everyone bothers with in-house counsel. Is it the company leadership forwarding the contract?
What's the scope of the punishment? An embargo on all new legal agreements for a period of time, or only with the parties to the bad contract? A requirement for change in legal representation? Now we get into overreach questions on the punishment side.
All of that to say I am guessing the reason something like this doesn't exist yet afaik is because it's a logistical nightmare to actually put into practice.
The closest I can think of to something that might work is like a credit score/rating for companies for "contract integrity" or something that goes down with negative rulings - but what 3rd party would own that? Even just the thought experiment spawns too many subqueries to resolve simply.
None of that contradicts the fact it's a good idea - just not sure if even possible to bring to life!
I'm reminded of the concept of a "tact filter", which is basically "do you alter what you say to avoid causing offense, or do you alter what you hear to avoid taking offense?"
The part the original essay leaves out is that optimal behavior depends on the scale and persistence of the relationship. In personal, 1:1, long-term relationships, you should apply outgoing tact filters because if you cause offense you've torched the relationship permanently and will suffer long-term consequences from it. But in public discourse, many-to-many, transactional relationships, it's better to apply incoming tact filters because there are so many people you interact with that invariably there will be someone who forgot to set their outgoing tact filter. (And in public discourse where you have longstanding relationships with your customers with serious negative consequences for pissing them off, you want to be very, very careful what you say. The entire field of PR is devoted to this.)
So anyone who spends a significant amount of time with the general public basically needs to develop a translation layer. "i hope you hang yourself" on an Internet forum becomes "somebody had a bad day and is letting off steam by trolling." "Your business is probably in violation of federal labor laws because you haven't displayed these $400 posters we're trying to sell you" becomes "Better download some PDFs off the Department of Labor for free" [1]. "We're calling from XYZ Collection Agency about your debt" or "This is the Deputy Sheriffs office. You have a warrant out for your arrest for failing to appear for jury duty" or "This is the IRS calling requesting you pay back taxes in the amount of $X over the phone" = ignore them and hang up because it's a scam. "Continued involvement in Russia's internal affairs will lead to nuclear consequences" = Putin is feeling insecure with his base and needs to rattle some sabers to maintain support. "You are in violation of several state and federal laws facing up to 20 years in prison" = they want something from me, lawyer up and make sure we're not in violation and then let's negotiate.
There is obviously such a thing as going too far, but it's kind of hard to draw a clear line. In a good faith context, laws and precedents can change quickly, sometimes based on the whim of a judge, and there are many areas of law where there is no clear precedent or where guidance is fuzzy. In those cases, it's important to have severability so that entire contracts don't have to be renegotiated because one small clause didn't hold up in court.
Imagine an employment contract that contains a non-compete clause (ignore, for a moment, your personal beliefs about non-compete clauses). The company may have a single employment contract that they use everywhere, and so in states where non-competes are illegal, the severability clause allows them to avoid having separate contracts for each jurisdiction. And now suppose that a state that once allowed non-competes passes a law banning them: should every employment contract with a non-compete clause suddenly become null and void? Of course not. That's what severability is for.
In the case in the OP, it's hard to say what the context is of the threat, but I imagine something along the lines of, "Unauthorized access to our computer network is a federal crime under statute XYZ punishable by up to 20 years in prison." Scary as hell to a layperson, but it's not strictly speaking untrue, even if most lawyers would roll their eyes and say that they're full of shit. Sure, it's misleading, and a bad actor could easily take it too far, but it's hard to know exactly where to draw the line if lawyers couch a threat in enough qualifiers.
At the end of the day, documents like this are written by lawyers in legalese that's not designed for ordinary people. It's shitty that they threatened some college students with this, and whatever lawyer did write and send this letter on behalf of the company gave that company tremendously poor advice. I guess you could complain to the bar, but it would be very hard to make a compelling case in a situation like this.
(This is also one of the reasons why collective bargaining is so valuable. A union can afford legal representation to go toe to toe with the company's lawyers. Individual employees can't do that.)
"Legalese" can often be simplified, but concepts that are necessarily in law are often not widely known by lay people, and as such it's hard to avoid some terminology and reasoning that require a bit of legal training to understand.
But every subject and field has their own set of terminology. It's just like programming -- while we strive to make code easier to understand (eg. Python is better than assembler in this regard), there's still a necessary learning curve. Your question is almost like asking "why can't we just tell the computer what we want to do in plain English?"
Sometimes the legalese is actually comprehensible if you give it a bit of patience. Often though, programmers like to make (wrong) assumptions about how the words are to be interpreted though, and that's where most people trip up.
Without a common language with exact meaning for phrases that are accepted by both parties contracts would be impossible to enforce and become useless.
It's a balance between encouraging people to stand up for their rights on one hand and discouraging filing of frivolous lawsuits on the other. The American system is "everyone pays their own legal fees", which encourages injured parties to file. The U.K. on the other hand is a "loser pays both parties' legal fees" (generally), which discourages a lot of plaintiffs from filing, even when they have been significantly harmed.
There can be consequences, but you have to be able to demonstrate you have been harmed. So, in what way have you been harmed by such a threat, and what is just compensation? How much will it cost to hire a lawyer to sue for compensation, and what are your chances of success? These are the same kinds of questions the entity sending the threatening letter asked themselves as well. If you think it is unfair because they have more resources, well that is more of a general societal problem - if you have more money you have access to better justice in all forms.
I recently got supremely frustrated by this in civil litigation. The claimant kept filing absolute fictional nonsense with no justification, and I had to run around trying to prove these things were not the case and racking up legal fees the whole time. apparently you can just say whatever you want.
That's not the language they use. It will be more like "your actions may violate (law ref) and if convicted, penalties may be up to 20 years in prison." And how do you keep people from saying that? It's basically a statement of fact. If you have a problem with this, then your issue is with Congress for writing such a vague law.
“[the security researchers] may be liable for fines, damages and each individual of the [security research] Group may be imprisoned… Criminal penalties under the CFAA can be up to 20 years depending on circumstances.”
“the Group’s actions are also a violation of Buzz’s Terms of Use and constitute a breach of contract, entitling Buzz to compensatory damages and damages for lost revenue.”
“the Group’s agreement to infiltrate Buzz’s network is also a separate offense of conspiracy, exposing the Group to even more significant criminal liability.”
Emphasis added. The language is quite a bit more forceful and threatening than you make it out to be. Given that they were issuing these threats as an ultimatum, a "keep quiet about this or else...", it was likely a violation of California State Bar's rules of professional conduct.
No, you are talking about criminal law. What OP is talking about is severability, which exists so that if a judge determines Clause X violates the law, they can still (attempt) to enforce the rest of the contract if X can be easily remedied. I.e. The contract says no lunch breaks but CalOSHA regulations say 30 minutes required, the contractor can't violate the contract in its' entirety, they just take the breaks and amend the contract if the employer pushes it.
I disagree with OP - a judge can always choose to invalidate a contract, regardless of severability. It is in there for the convenience of the parties, and I've not heard of it being used in bad faith.
"That's not the language they used. They simply admired your place of business and reflected on what a shame it would be if a negative event happened to it. How would you keep people from saying that? It's basically a statement of fact..."
Because contract law mostly views things through the lens of property rights. Historically those with the most property get the most rights, so they're able to get away with imposing wildly asymmetrical terms on the implicit basis that society will collapse if they're not allowed to.
These guys (at least according to the angry letter) went beyond reasonable safe harbor for security researchers. They created admin accounts and accessed data. Definitely not clearly false that there's no liability here. Probably actually true.
IANAL, but the letter is borderline extortion/blackmail. Threatening to report an illegal activity unless the alleged perpetrator does something to your advantage can be extortion/blackmail AFAIK.
I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". The employer is basically trying to enforce their rules (reasonable), but they have no negative consequences if what they write is not allowed. At most a court deems that piece invalid, but that's it. The onus is on the reader to know (which tends to be a much weaker party).
Same here. Why can a company send a threatening letter ("you'll go 20 years to federal prison for this!!"), when it's clearly false? Shouldn't there be an onus on the writer to ensure that what they write is reasonable? And if it's absurdly and provably wrong, shouldn't there be some negative consequences more than "oh, nevermind"?