The mother fish swam backstroke near the top of the aquarium. Swim bladder inflated like a balloon. Colour faded. Gills barely moving. Nearly six years old, a pretty good run for a fish of her breed.
The other fish swam past, continuing their endless journey within the confines of the tank. Ignoring her piscine plight, in the same way humans pretend not to see the homeless, or step over rather than help fallen passengers at train stations to avoid being late for work.
Sensing vulnerability, occasionally one of the smaller fish would dart in to nip at her fins or tail. The mother fish was not strong enough to stand up for herself. An ignoble way for her journey to end.
I walked across the room, intending to put a swift end to the mother fish’s suffering, when the lockdown kitten proudly strutted by carrying in his mouth a package almost as large as he was.
Suspecting mischief, I moved to intercept. He feinted left. Dodged right. Bolted between my outstretched hands and disappeared upstairs.
Forty-five minutes later I had managed to extract the lockdown kitten from his hiding place underneath my younger son’s bed. His treasure turned out to be a large packet of bacon, that he had liberated from the kitchen of one of the neighbours.
Summertime open windows creating a world of opportunity for a feline with a flexible concept of ownership.
Walking back past the aquarium, I observed a flurry of activity. A feeding frenzy was taking place. Dozens of fish, including many of her children and grandchildren, devoured the carcass of the mother fish. In less than an hour, she had been reduced to a mere skeleton.
Systematically stripped of all she had once been. Her possessions. Privacy. Reputation. Self-esteem. Status. Territory. Very existence. Reduced to a raw input. A consumable commodity, existing only to satisfy the basic needs of those bigger and stronger than her.
Soon to become just a rapidly fading memory. Then, not even that.
I buried her remains in the garden. Annoyed at losing his bacon, the lockdown kitten promptly dug them up and ate them too.
Contracts
Over the last few weeks, I have spent an unhealthy amount of time reviewing a collection of employment contracts. Viewing the world from the other side of the negotiating table. For the first time in almost 20 years, I was considering joining the ranks of the employed.
In some ways, this was an appealing prospect. Letting somebody else drive for a change.
Not having to worry about finding and keeping clients.
Not being the escalation point of last resort.
Not having the buck stop with me.
Less control. Less power. Less responsibility. A paid holiday, after the constant demands of running a business.
Role defined by a duty statement, rather than comprising of “other duties as required”.
Most things becoming somebody else’s problem. Making sales. Landing clients. Balancing the books. Detecting fraud. Developing products. Enforcing contracts. Fending off lawsuits. Negotiating prices. Paying the bills. Hiring, mentoring, training, and occasionally firing staff.
Adhering less to the old mantra of “spend the company’s money like it is your own”. For once, the firm’s money would not actually be my own.
Of course, there are some downsides of employment.
Having a boss.
Asking for permission.
Limited holidays.
My efforts enriching others, rather than myself.
Performance measured and monitored.
Politics and presenteeism.
Being expected to play the game. A difficult ask, once you’ve seen through it. A genie that won’t ever go back in the bottle.
The premise of an employment contract should be a simple agreement between two parties to reward a fair day’s work with a fair day’s pay. It isn’t complicated.
Or so I had thought!
Some of the contracts I reviewed ran for more than 30 pages of densely worded legalese. Containing more traps than an episode of Scooby-Doo. Covering not only the employee’s contracted working hours, but seeking to control or curtail many of the freedoms they enjoy outside of them.
Reading through them was a tedious, though eye-opening experience.
Runnng a business had taught me that everything is negotiable.
Years of experience dealing with contracts and lawyers had shown that, like many contracts, much of the content would be neither enforced nor enforceable.
Employers rely on apathy, fear, and ignorance in their employees.
Knowing few employees would read every word.
Fewer still would comprehend their implications.
Only a vanishingly small number would have the financial means to defend a threatened legal action.
Today I thought I’d explore some of the more onerous things those contracts demanded of a prospective employee. These asks were being made before an employment relationship even existed, while the prospective employee was still being wooed by the would-be employer. The lingerie and seduction part of the courtship, long before the let down of the flannelette pyjama-clad relationship realities are revealed.
Freedom of expression
Many contracts require the employee to grant ownership of intellectual property developed during their employment to the employer.
Clever algorithms.
Magic widgets.
Secret formulae.
One contract laid claim to the entirety of an employee’s creativity.
Whether related to work or not.
Created during working hours or not.
Using the employer’s equipment or not.
An employee pens a best-selling novel during their evenings and paid vacation? The firm owns it.
Banker by day, garden shed tinkerer by night, inventing a hoverboard on the weekend? Bank owns it.
Employee running some side hustles, perhaps a network of content-based affiliate marketing sites?
As worded in that contract, the employer claims ownership of them all.
Freedom of assembly
Several contracts sought control over what activities an employee could engage in outside of work.
Employers fearing their employees may engage in dodgy dealings which may harm the reputation of the firm. Supporting unsavoury political parties, sporting teams, or sexual proclivities.
They required employees to seek permission before undertaking any new outside activities.
Charity work?
Coaching their child’s sporting team?
Consulting?
Side hustles?
Volunteering?
Being a blogger, influencer, podcaster, or YouTuber?
The employer’s decision was final, but would not be “unreasonably” withheld. What constituted “reasonable” was not defined.
Imposing such a permission gate presents a potential trap for the employee.
By flagging they had time for a life outside of work, they risk declaring they aren’t working hard enough or don’t have enough to do.
Good employers recognise that a balanced lifestyle produces happier and more productive employees. Large consultancies and American investment banks on the other hand, not so much.
Freedom of trade
Most of the employment contracts contained “non compete” clauses.
Employees asked to agree not to poach clients. Not to share trade secrets. Not to lure away colleagues, for an arbitrary period after their employment ceases.
The scope, coverage, and duration of these clauses varied considerably.
Six months.
A year.
Two years.
A few contracts were worded such that the employee was forbidden from working for anyone else in the sector. Or anyone they potentially met through the firm. Or any employer who happened to use any of the software products the firm used.
As worded, the employee would be unable to work for anyone who used any of the three leading cloud computing providers, because the employer used them all. Nor join any firm that had visited or participated in industry, networking, or trade show events.
In other words, if enforced, the employee would be prevented from performing paid work doing anything remotely related to the function they had previously earned a living performing.
Freedom of ownership
Most of the employment contracts contained blackout periods, during which the employee was unable to deal in the employer’s shares to avoid the risk of insider trading.
Some required any investment activity made by the employee, or their family members, to be pre-approved by the firm. Regardless of market or sector. Even that automatic monthly purchase of Vanguard’s Global Index Tracker in your child’s ISA would require pre-approval. Every. Single. Month.
One contract went so far as requiring the employee to authorise the firm having direct access to their family’s personal investment accounts, to ensure compliance.
A different contract required employees to agree that performance bonuses were subject to open-ended clawback provisions. Should the firm subsequently decide, at any point in the future, that those bonuses were no longer deserved, the employee would return the monies immediately and in full.
Think about that for a moment. That performance bonus you received 7 years ago from a previous employer, and subsequently put towards your house deposit, is suddenly demanded back. How easily could you come up with a five or six-figure sum like that, with no warning?
A third contract required employees to allow the installation of remote monitoring and deletion software on their personal electronic devices. Phones. iPads. Computers.
Every personal text message, email, website visit, and keystroke performed on their own devices would be automatically shared with the firm.
Freedom from discrimination
Many roles offered generous benefits packages, including optional insurance products for health, life, and total permanent disability coverage.
Reading through the small print, a couple of contracts stated these insurance benefits would immediately cease the moment an employee reached state pension age. This meant the salary package offered to older employees is worth considerably less than that on offer to their younger colleagues.
One contract stated details and outcomes of any medical treatment sought under the firm’s health insurance policy would be automatically shared with the firm. Becoming a relevant factor for advancement and retention decisions. Cancer screening. Counselling. Genetic testing.
Several clearly stated discussing contract terms, salary, or benefits with other employees constituted grounds for immediate dismissal. All pending performance bonuses and stock options would be forfeit.
Freedom of conscience
A slightly bizarre contract required employees to be vocal supporters of the organisation on social media. Sharing and liking corporate posts with social and professional networks to amplify reach. Failure to do so constituted a breach of employment conditions and would be subject to disciplinary action.
Turning their large workforce into an army of sycophantic cheerleaders. “Go team!”
Another contract insisted that throughout their time of employment, the employee was prevented from mentioning their employer on social media entirely. Understandable perhaps, had the firm been a national security agency or discreet private bank. This condition produced some very entertaining LinkedIn profiles!
A different contract banned staff from posting anything on the internet, that had not been vetted by the firm’s legal and marketing departments.
As written, the scope of the ban wasn’t just the firm’s website, or writing articles in the context of representing the firm. It covered leaving reviews on Allrecipes, Amazon, or Tripadvisor. Commenting on Facebook, Reddit, or YouTube. Uploading holiday photos to Instagram. Sharing meme stock tips via Tiktok.
Onerous
I had seen or heard about variants of most of the above over the years.
The more onerous contracts sought to extend the employer’s power over all facets of their employees’ lives, and those of their immediate families.
Seeking a relationship bordering on ownership, rather than simply employment. To consume every aspect of the employee, as the cannibalistic fish had consumed their mother.
These firms took a flexible view of ownership, not dissimilar to the lockdown kitten pilfered bacon. Placing ever more outrageous demands on their employees. Not compulsory of course, a prospective employee was free to say no, fully aware that everybody who works for the firm signed up to the same conditions without making a fuss.
Controlling their voice, time, thoughts, imaginations, and actions.
Asking them to voluntarily sign away many of their freedoms and privacy.
It surprised me that employers would consciously and explicitly choose not to measure employees based on outcomes and productivity, but rather by time served in front of a keyboard.
Creating a workforce of unhappy salary collectors, rather than delivery focussed problem solvers.
It was an odd choice. Driven by fear, greed, and incompetence.
Not the way I would run a business. But then as an employee, these would not be my businesses to run.
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freddy smidlap 18 June 2021
i work at a pretty well paid hourly job and don’t do a productive thing when the meter is not running. that arrangement has worked out well for me having been on the salaried side in the past.
the presenteeism you mention seems crazy to me. i report to a very productive phd chemist of 30 years at the job. even though he voluntarily works 10-12 hour days i know big brother monitors the logged in hours from the gate logs to our facility. it’s like these accomplished professionals are treated more like fred flintstone punching into work at the quarry. i don’t see how treating them that way could not adversely affect how much some of them give.
all those contract terms you mention would make me hate the prospective employer before i ever set foot in the door for the interview!
{in·deed·a·bly} 18 June 2021 — Post author
Thanks Freddy. Sounds like you’re on a sweet deal there.
The roles I’ve been considering are salaried, offer no overtime or time off in lieu, and the best an ambitious hardworking employee could hope for is an occasional ‘attaboy and maybe a token bonus at year end.
Fortunately I have no ambition and work smart rather than hard!
Which meant screening out some of the more intrusive potential employers.
One installs spyware on their work issue computers, taking screen shots every few minutes of both the employee’s screen and the person looking at it, along with tallying up and reporting total “idle” time during core working hours.
Another warned that laptop microphones and video cameras were permanently “hot”, faithfully broadcasting back to Big Brother HQ every burp and fart proudly issued by working from home employees. Where an employee’s bedroom doubles as an office, then footage and soundtrack of whatever they get up to in bed is also broadcast anytime they forget to switch off their computer.
Needless to say, neither option was the place for me.
Donna 18 June 2021
I often wonder whether any of these clauses can actually be enforced in a court of law. Unrelated- are you aware of any bloggers based in Jersey, I could do with learning about how finances work on the island? Perhaps through your moneyvator research?
{in·deed·a·bly} 18 June 2021 — Post author
Thanks Donna.
I suspect many of them would not, but proving that in court would likely be a Pyrrhic victory at best, as the relationship with the employer would be irrecoverably damaged to the point that there would be no practical means of the employee ever viably returning to the workplace. A similar situation to that experienced by whistleblowers, being right and out of a job still means being out of a job.
On your Jersey question, I’m not aware of any Jersey based Personal Finance bloggers. To learn more about how their systems work, I’d start with the Jersey Financial Services Commission or engage the services of a locally qualified accountant or financial planner.
steveark 19 June 2021
Although those were some heinous clauses I suspect the chances of any corporation trying to claim ownership of a novel, song or mousetrap created by someone working in the accounting departments are essentially zero. They are written to cover almost any circumstance but rarely enforced. A prime example is tuition reimbursement for job related education. Employees are often required to stay a certain number of years after getting the reimbursement but no company is ever going to hunt down an employee that leaves early and try to recover that money. It just doesn’t happen. Even the noncompete clauses are never enforced unless the employee is clearly poaching clients or has illegally taken trade secrets to a competitor. While they are onerous they are generally toothless as well, at least in my experience. The IT stuff is enforced, at least on the rank and file employees. As the boss I forbade any monitoring or restrictions on my electronics. As for other employees we only used that information to dissuade individuals from looking at porn at work, and just warned them off, never fired anyone. We did not restrict anyone’s social media even if they were critical of the company, however it didn’t exactly improve their standing if senior management came across it. But I left the corporate world five years ago, it may have gotten much worse since then.
{in·deed·a·bly} 19 June 2021 — Post author
Thanks Steveark.
I agree, many of the clauses are just there to provide grounds to get rid of someone when the time comes, rather than actively policing ongoing behaviour.
For example, I once worked with guy who got fired for buying lottery tickets on his work computer when gambling was against the site rules. Getting rid of him because he was criminally incompetent and lazy would have been a hassle, with all the warnings and performance management and so on. So instead, they just went back through his browser history until they found something plausible, and used that as the justification for getting rid of him immediately.
As for excluding the boss from monitoring, my experience has been this is often requested but seldom implemented. Two reasons. First, these things are usually pushed out in an automated fashion, so creating exception rules are an additional moving part and point of failure that lazy techies would prefer to avoid. Second, the advancement and bonus prospects of those same techies are significantly improved when they have dirt on the boss, eg cheating on a spouse, sexual harassment, having porn on the work computer, etc.
Another place I once worked had an IT Manager on a six figure salary with no apparent duties, however for reasons nobody could understand he was untouchable and protected by the CEO. Rumour had it the guy had found something in the CEO’s email box that would have resulted in an expensive divorce if revealed, so it was cheaper to keep the guy close and quiet.
steveark 19 June 2021
I misstated the tracking of my web use. I wasn’t doing anything illicit but their filter was ridiculously tight and when I was in charge of government affairs I needed to be able to look up any news story that involved our sector. So I would just ask them to kill the filter on my computer. I’m guessing they could still track what I did, they just couldn’t hinder my searches. Our cell phones had unrestricted personal use. You weren’t technically supposed to have private software but I had video games installed on my notebook PC at times to play at home and it was never an issue. At my level they did not need an excuse to get rid of me, it is always pretty easy to fire the boss. Fortunately they never did. I also never used any of those overreaching policies to fire anyone else. The only thing that absolutely got people fired was violation of the sexual harassment policy and testing positive for illegal drugs.
{in·deed·a·bly} 19 June 2021 — Post author
It is funny what the boss can get away with.
Back in the days before Netflix, one guy I knew insisted on a similar exemption from his IT staff. He then proceeded to host a torrent for downloading and sharing pirated movies off his work computer, because he didn’t want the inevitable viruses and malware getting on his home computer! Unlike yourself, he did cite the misuse of corporate communications equipment as grounds for dismissing staff. It was kinder to his budget than paying redundancy packages, earning him a larger performance bonus.
Not one of the good guys.
Bob 20 June 2021
It was not just employers. I recall from the nineteen eighties Jerry Pournelle writing in Wired magazine that the early word processing packages claimed technical ownership of products created. I think he challenged one to claim royalties to The Mote in God’s Eye.
{in·deed·a·bly} 20 June 2021 — Post author
Wow! I can’t say I’m surprised, but feel bad for the first author who had to stump up the legal fees to get such a claim dismissed in court. Imagine Microsoft today claiming ownership of Harry Potter or Game of Thrones.
weenie 23 June 2021
@steveark is right – the clauses are onerous, but it’s whether anyone wants to try to enforce them or not (usually boils down to whether financially it’s worth pursuing). I know the company I work for have successfully got payments from breaches of non-compete clauses (easy to check LinkedIn to see where someone has moved to etc).
The only one I’ve not come across is freedom of assembly – the others or similar have been in (or are currently in) my employment contracts.
My friend has just got a new job and had to provide her social media account names for ‘verification’ purposes. I think she’d gone through her account and deleted any drunken posts…
Despite not being allowed these freedoms, which when listed like that, look really bad, I’d take working for the man/woman any day with these ‘shackles’ over working for myself. I’d be a terrible boss (to me!)
Anyway, all the best in finding a contract which you are happy with (or with the least onerous terms!)
{in·deed·a·bly} 23 June 2021 — Post author
Thanks weenie.
I genuinely feel bad for whomever my future boss ends up being. After ~20 years running my own show, I suspect I would be a huge pain the backside to try and manage!
Andy 26 June 2021
Employment contracts appear to be increasingly one-sided. I’m not sure how enforceable they would be in court, given they’re blatantly one-sided and it could be argued they are signed under duress – I suspect most employees need the money and have little choice but to sign.
Also, if trying to negotiate, I suspect most companies would say “the clause is standard in all their employment contracts”.
Only those with the confidence to walk away would fight for the removal of dodgy and prohibitive clauses. Again, this will be a minority of employees.
{in·deed·a·bly} 26 June 2021 — Post author
Thanks Andy.
I agree, the power lies with the party who needs the position least. One of the benefits of financial independence is that luxury to be choosy, and walk away from roles that raise red flags.
“But everyone else accepted that same wording” was a common refrain amongst prospective employers when I pushed back on unnecessarily onerous employment conditions.
BeardyBillionaireBloke 26 June 2021
discrete private bank — discreet
I was at a place that wanted quarterly statements
from all brokers (even if they didn’t do statements)
to show what trading had happened (even if it was none).
All to track my purchases of VWRL which is the opposite of
insider trading. And there was more hassle that I don’t
think I should bore you with.
My advice to kids today would be to be ready to sue your
colleagues and bosses for libel at the first opportunity
before they get in the habit of it.
{in·deed·a·bly} 26 June 2021 — Post author
Thanks BeardyBillionaireBloke. I’ll have to give my proof reader a slap upside the head for not catching that one (ouch!).
Q-FI 27 June 2021
Like you Indeedably, I read every word in contracts. Although that’s part of my background in real estate and leasing. For example, when we bought our house I read through every page before signing anything. My wife was really annoyed because it took so long on our signing day, but I need to know what I am agreeing to in the fine print as well as the due diligence.
I’ve also improved at protecting myself better in contracts over the years. Until I was laid off from my employer after 10 years, I had never really paid attention to the fine print. But now I am much better at negotiating, understanding my rights, putting in severance clauses, etc.
It is crazy what employers will put in contracts nowadays. But I also think it usually takes something bad happening before most people wise up and learn their rights.
Good topic.
{in·deed·a·bly} 28 June 2021 — Post author
Thanks Q-FI.
Confidence and knowledge are key aspects to negotiating well. So too is enjoying the luxury of being able to walk away if the proposed deal is unpalatable.
The Accumulator 1 July 2021
Great post. What’s next? “We’d like ownership of your first born and 51% of your mortal soul.”
When you push back, do any of them take out the offending clauses?
Like Q-Fi, I’ve actually offended people by taking the time to read their booby-trapped small print and asking awkward questions about it.
{in·deed·a·bly} 1 July 2021 — Post author
Thanks TA.
I’m yet to see a contract explicitly asking the candidate to consent to filicide. That said, cogs in machines aren’t supposed to have competing priorities such as families, so it should be a non-issue.
Years ago a client site I worked at outsourced their technology department. The revised contract those permie workers were offered after they were TUPEd required them to consent to always being contactable in real time 24/7, no exclusions for paid annual leave or bank holidays.
A consultancy I once managed a team for required their warm bodies to automatically consent to arbitrary international assignments of indeterminate duration and location. Great for those who ended up with a month in Bermuda. Less great for those tasked with spending months flying by helicopter from remote offshore rig to offshore rig manually upgrading computer systems due to inadequate bandwidth.
My experience with pushing back has been mixed.
One employer buckled instantly, the hiring managing grinning like a kid who had been caught with their hand in the cookie jar.
Another got uppity, because everyone else had signed, but when they checked with their own employment lawyers it turned out the clauses they included weren’t enforceable and in a couple of cases were actually illegal.
Most played hard ball. There are plenty of more agreeable/desperate job seekers out there, and if you’re seeking “yes men” then it is a bad sign if a candidate pushes back on unreasonable clauses in an employment contract. I think this is a reflection on the state of the current job market, the power resides with the employers in my niche at the moment.
The Accumulator 2 July 2021
I hate the bullying ‘We’ve got you by the short and curlies’ nature of this. There’s a limit to what’s worth giving up for money. Well done for pushing back.
{in·deed·a·bly} 2 July 2021 — Post author
Thanks. Today I enjoy the luxury of choice. That wasn’t always the case.
A million years ago I sold my soul to a large investment bank for a sponsored work visa. 100+ weeks I expected, the toll of the pay cheque. Having leave requests rejected or rescinded any time I asked for a day off (after having been shouted at by HR to “use or it lose it” my paid annual leave entitlement) was unexpected. Feeling powerless, like a slave, was horrible. Never again.
SparkleBee 6 August 2021
Oh the fun of contracts…. I have just been catching up on your posts after taking time off from online browsing…
I have had contracts with clauses such as the right to access/Interrogate and delete content from personal phones/computers if used for work purposes…(including the right to completely reset back to factory settings your phone or computer!) which is why I will not use my own equipment for employer work. They also make you responsible for any virus that may be transmitted onto their network from your personal equipment. The consequences of which could be financially considerable.
I have worked at places where only certain phones allowed international calls so to call that international supplier you had to go and sit at your manager’s desk… it backfired when some temp international contractors worked late and then used the empty office to call their families back home…when the bills came in and the employer saw what was happening they sacked the contractors and changed the system to use access codes for international dialling.
I have worked places where they have confiscated your phone due to the sensitivity of the information in the office. You got it back when you left the premises at the end of the day.
I have had contracts where you cannot post on social media during office hours, if you do then you are deemed as not working and can be sacked.
It included the clauses about defamation of the employer…etc… if you post defamatory info on the employer outside working hours you can also be sacked. They would view your public posts but I am sure they have probably gone further now. Your work computer would be scanned for inappropriate content. Your browsing history checked. Your email scanned and vetted for anything inappropriate.
I have seen people sacked for using the internal corporate instant messaging system for derogatory comments on fellow workers and also accessing/watching porn on their work computers. Someone was also tracked down and sacked for using the work network to download films off bit torrent and other pirate sites.
I have had contracts that prevent poaching of staff, working in the same position/job role for competitors. (Unenforceable as that makes you unemployable in certain industries) I have seen people marched offsite as soon as it was found that they were going to work for a competitor…no notice..straight out the door to prevent any sensitive info being leaked to the competition.
The joys of being an employee… the scope of the control grows as social media and disruptive online technology invades the work and personal space.
{in·deed·a·bly} 6 August 2021 — Post author
Thanks for sharing your experiences, SparkelBee. There are some shockers in amongst them!
I remember one client site where they held fire drills whenever redundancies were being made. Evacuate the building, disable the security passes of those no longer required, and then call the police to disperse the angry mob who found themselves newly unemployed on the wrong side of the security barriers.
One of the contracts I reviewed here contained a clause consenting to the installation of remote wiping software on personal devices used for work purposes. That is becoming increasingly common, as more people are checking their work emails from their personal smartphones.
I must observe that folks who use corporate communications to talk out of school are setting themselves up for a fall, as there are no expectations of privacy. One place I worked made the chat history on their internal messaging application publicly (within the firm) searchable. Around the same time they loaded the entire content of every staff member’s email account into their datawarehouse, again making it searchable (subject to information access policy constraints). There were more than a few unplanned leaving drinks that month!
SparkleBee 11 August 2021
Lol…. I have heard of the fire drill style but never experienced it.
The nearest was when I was made redundant and asked to go to HR on some now spurious reason to find my boss there and read the you have lost your job news using the prescribed verse so as to avoid any tribunal claims. While there my access to anything was revoked.. within 10 minutes I was an ex employee.