ContractPatch: Supporting Maintainers in Employment Agreements
byon December 19, 2019
Since we've launched ContractPatch, I've heard a lot of feedback from free software contributors about the successes they've had in negotiating their employment agreements. While not everyone has achieved full modification to the agreement, so far everyone who's reported back had a positive experience negotiating and many have been able to introduce improvements into their contracts. As we've mentioned before, generally employers won't give you something unless you ask for it and generally agreements are negotiable. As a developer or other contributor, you often know what your FOSS project needs better than your employer does even though they may depend on that project.
Recently, I was discussing this with a CEO of a company that (like many) depend on free and open source software for their business to succeed and he was kind enough to send me an example of one of the free software specific provisions that they included in their contract with an employee. The employee is a developer who maintains an important project, and was its maintainer even before the company's founding. This provision gave the employee confidence that they could continue their work for the project. Furthermore, this provision clearly demonstrates the company's commitment to support the project.
This part of the contract says:
For 10 hours each week, you will be free to continue your work as the [PROJECT] maintainer. The tasks you work on will be at your discretion, and you will hold the copyright to that work, so long as it is released under [COPYLEFT LICENSE]. For the remaining 30 hours per week, you will work at the direction of [COMPANY].
While the provision could certainly go farther in favor of the employee1, this provision clearly declares the intention of the company with respect to the employment relationship. The employee gets to choose how best to maintain and improve the free software project unfettered by the needs of their employer and also knows how much time is reasonable for them to use during work hours. Additionally, the provision allows the employee to keep their copyrights, which given the copyleft license, empowers the employee going forward and underscores the company's intention to stay in compliance with its license obligations. This provision is strong, but the contract could also address a procedure or process for how to handle a situation where the interests of the company and the interests of the project conflict. For example,they could also include a term that indicates the employee should mark the contributions during those 10 hours in some way, such as by using a personal address in all those Git commits. There are a range of provisions that employees already have in their contracts to help their free software work, this is just one example of a provision that is in effect for an employee right now.
Many free software contributors take jobs with the unwritten understanding that they will be able to continue working on their long-time free software projects. As Bradley quoted from the old telephone commercials on our FaiF episode that announced ContractPatch: “put it in writing!”. Without having that written agreement with their employers, employees find later that expectations can change. Managers change; companies get acquired; and, sometimes, what's promised on the interview just never turns out as expected! Often higher level management understands the importance of having an employee working on the free software projects that the company needs, but shifts in middle management can easily break that focus. Employees then may not feel comfortable escalating the problem. Ultimately, that results in decreased employee satisfaction and allows short-term quarterly goals of the company to take precedence over the free software projects that the company needs for long-term profitability. Explicitly giving the “freedom to FOSS” in employment contracts both provides long term benefits to all parties and brings sustainability to FOSS.
1 For example, the employee in question sometimes spends more than 10 hours on behalf of the project and has considerable leeway to exercise their judgement for the process in the course of their employment
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