How are you dealing with a no moonlighting clause from your employer?
I have signed a typical no moonlighting/IP rights clause with my employer. Because of this, I try to be quiet and anonymous about my side projects but this really holds me back for things like building an audience, marketing, github contributions etc. How are others handling this issue?
First of all, you should read https://www.joelonsoftware.com/2016/12/09/developers-side-projects/ so that you understand why your employer has that clause in your contract.
And the way to handle is it by telling your manager that you want to work on a new business in your spare time and you need them to sign a contract that forfeits any claim they might have over IP related to that business, based on the conditions that your new business is not going to be a competitor, will not interfere with your commitments as an employee, and there will be no transfer of their IP to your business.
There are employers out there who are happy to sign these in order to keep good employees around.
I would focus on building an audience. Provide something of value to the world for free. That won't violate any moonlighting clause I've ever encountered, and best of all there's no tax on goodwill.
Simultaneously, make sure you're building your market value and your employability so you can either renegotiate the rules of your current employment or avoid such inhumane clauses in your next job contract.
After making your move, give it a few months so it's clear there was no overlap and then release a paid offering to your audience. All the trust and authority you've built up through what you've been doing for free will pay dividends in the long run.
I like this approach, I’ll just have to be careful about what I talk about, E.g., not referring to “xyz project I’m building”
I have had these taken out before by saying that I was worried that the terms would prevent me from making open source contributions and improving my skills (which was true but I just wanted it removed anyway). Framing it in terms of benefits for the employer helps.
I would not or could not sign a contract with that clause in it. My previous job didn't have one but a few years in I found out my old boss really looked down on it and it kind of made me feel very uneasy after I knew that.
I’m pretty sure my employer would not legally enforce the clause. I’m not working on anything related to their business, but I do think they would frown upon it. Even so, lately I’ve been thinking “screw it, they don’t own me”.
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If you're in California, these clauses are legally unenforceable. Always be sure to do any such work on your own equipment to avoid any risk (separate laptop, service accounts, workspace).
https://www.quora.com/Which-California-laws-protect-moonlighting
I am so glad you raised this. I have been thinking a lot about it. I have always spoken to my employer and signed the things I need to sign.
In your case, I think this will really hold you back from putting effort into your business. you will have an excuse not to work.
I suggest looking for other work, if that's a thing. Perhaps be open to your employ about that too. They may change the terms if they like you.
Lying about moonlighting is the worst thing you can do. If you are caught, they may be able to claim your IP.
Become unemployed, then build and launch product in 6 months, then get a new job. You'll feel legally invulnerable and you'll won't worry about stuff like this. Your new employer will have no claim to your business or IP before he employed you and his claims on your weekend work will be doubtful (and his claim would be limited to that weekend work, not to the entire business). Even if you did everything wrong with your new employer (didn't disclose, signed and violated a draconian agreement), your new employer would have little recourse except firing you.
Personally, I think starting a business (V1) is difficult/impossible by moonlighting but V1.5+ are completely doable by moonlighting.
Find a new employer...
I know it's not what you want to hear, but this one's pretty simple for me...
If you sign a contract, honour it (at the very least to the full extent it is legally enforceable).
I agree and get a different job. Such a scammy clause, wow.
I've never signed a contract with clauses I couldn't agree to. I've requested changes to almost every employment contract I've ever signed. Most people are happy to accommodate a change.
In your situation you either remain anonymous, invent a false persona, or risk your employer discovering that you are directly violating your employment contract and lose your job.
I’ve thought about the false persona, but it feels like it would come back to bite me some day. If I can get a little traction on a side project, I plan on asking to become a part time contractor and removing that clause.
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I say this is bad advice. I would rather be transparent, and if you have to, get another job. What if you lie and they find out and take yo to / your sudo owner to court.
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Ok. If it is illegal, then sure, do what you like. I agree with you on that front.
However if it is not illegal, I don't think it is ever a good idea to deceive your employer if you have signed a contract saying your won;t moonlight. The reason, they could claim ownership over your IP. This is also why, as others have said, it is never a good idea to moonlight while at work or with work resources.
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what about spouse?
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I asked because in some countries your and your spouses belongings considered together by law.
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Great advice.
Adding on to it, don't be afraid to cross out clauses in a contract too. Just draw a line through them and initial. I've had it questioned by executives when I've done this but never challenged. I do it for all moonlighting, IP assignment and non-compete clauses.
Consideration is a thing in all common-law countries and the US as well(My wife is a commercial lawyer so it's a term heard in our household a lot lol).
That's all good advice.
Something I'd point out though is that you probably won't be fired for 'moonlighting' as such. Instead, you're much more likely to be fired for 'poor performance due in part to the negative effect moonlighting had on your job performance.' Or similar.
Make no mistake, if your employer has made it clear to you that they don't want you moonlighting, then you will (probably) be fired if you insist on doing so.
Which IMO is sort of fair enough if you knew their policy upfront.
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I'm not sure where you got this idea, but the only way you could claim constructive dismissal is if your employer, having learned about your profitable side business, forced you to change your employment contract in order to obtain that IP going forward.
If you signed the contract at the beginning of your employment, there is no constructive dismissal claim to be made.
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Ok, I think you're getting constructive dismissal (your employer trying to get you to quit) and unfair dismissal.
It's important to remember that in the UK, it's incredibly difficult to bring an unfair dismissal claim to tribunal unless you've been employed (continuously) for more than 2 years, so relying on that to fight a dismissal on moonlighting grounds is very risky.
The solution here is, as you alluded to earlier, to negotiate those clauses out of your contract at the beginning.
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