Software Freedom Conservancy

ContractPatch, Step 3: It's never too late

by Tony Sebro on November 30, 2016

We understand that we may lose a little credibility with the other side when we look backwards. We're reluctant to break the psychological bond we formed when we reached agreement — even if that agreement was communicated by little more than silent assent. We worry that we look sloppy and unprepared, since we had a chance to bring up whatever concerns we had the first time we discussed that point, and we didn't.

Employees in particular can feel that way about the agreements they signed with their employer.

As Karen stated in our last entry, people likely will never have as much power over their employer as they do the moment just before they sign their employment agreement. I certainly agree, and we would all be wise to use that leverage as best we can while we have it. But what about the rest of us, who have already signed that agreement? All is not lost. Despite what our psychology tells us, it's never too late to go back to the negotiation table with your employer.

The stakes and the power dynamic are different, to be sure. From the employer's perspective, a recruit with a job offer in hand is potential personified; whereas an employee has an actual performance record and history of relationships — and, of course, a demonstrated willingness to work for the employer at the terms they already agreed to.

So, perhaps you're in a situation where you have some regrets about the employment agreement you signed. Or, perhaps you're up for a promotion, or a transfer, or some other change in job duties. Or, perhaps your priorities have changed, and you'd like to adjust where you're willing to give and to get accordingly. You should consider at least two factors when deciding how best to proceed.

Factor #1: is the juice worth the squeeze?

While it's certainly possible to renegotiate an employment agreement, every employee should recognize that the subtle cost of doing so is real. Your employer is presumably fine with the status quo, and you'll be asking them to spend time and/or resources considering your requests. As a threshold matter, you should be candid with yourself about the stability of that status quo: the cost of attempting to renegotiate might be much higher if your position with your employer is shaky than if you're a rising star. In addition, changes in responsibilities and/or title may afford you a unique opportunity to reconsider the terms of your employment.

You should also do your best to determine what others in comparable positions receive from their respective employers. Market data will give you a better sense of what your employer might be willing to concede in a renegotiation. Obtaining this data isn't always an easy task: salary benchmarking for various industries is generally available on the web, but information about industry practices regarding other terms of employment is harder to come by. One of our long-term goals with ContractPatch is to gather and present information that enables both employees and employers in the tech sector to efficiently negotiate better employment agreements.

Lastly, you should compare the value you place on each of your requests to their cost to your employer. Employers usually manage their employees' salaries closely, so a straight-forward request for a raise is usually a zero-sum game: more money for you, less remaining in the employer's budget for something else. But it might be harder to quantify the employer's cost for other requests — particularly if they relate to more non-monetary requests like ownership of copyrights in your work, flexibility to pursue and contribute to extra-curricular activities, etc. You'll likely need to rely on your understanding of your employer's culture and business model to estimate the cost (if any) your employer would incur to grant those non-monetary requests.

Obviously, the easiest renegotiations are the ones where you're confident in your standing with your employer, you value your requests a great deal, your requests are in-line with industry practices, and you think your employer will incur minimal costs in granting them. And, of course, context matters: an employer who has given you a promotion but who doesn't have the budget to give you a commensurate salary bump is likely to treat non-monetary requests differently than an employer who has just backed up the Brinks truck for you. Your risk/reward calculus will depend on your assessment — and will go a long way in determining when and how to reopen discussions with your employer.

Factor #2: what does your existing employment agreement say about it?

I know this should go without saying. But many an employee has signed their employment agreement without fully understanding all of the terms they've agreed to. So, as you consider whether to renegotiate your agreement, make sure you're familiar with the existing agreement. If you don't have a copy handy, you should request a copy from your employer to have on file.

Once you've reviewed your existing agreement, compare the current language with your wish list of requests. In particular, you should know whether your requests would require actual amendments, or if you're merely looking to clarify vague or even seemingly contradictory language.

So, if you have a firm grasp on your current employment agreement and how you'd like to see it changed — and if you're comfortable that obtaining some or all of those changes is worth the risk — you're ready to start renegotiating. If your assessments are accurate, you might be surprised as to what your employer is willing to concede the second time around.

Over the course of this series, we'll start to drill down into specific subject areas commonly covered (sometimes expertly, other times poorly) in employment agreements for employees in the tech sector. If there are particular topics you'd like us to cover, you can sign up for our mailing list and offer suggestions. We look forward to continuing the conversation.

Tags: conservancy, ContractPatch

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