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Ethical Employment Contracts Instead of Ethical Licenses?

by Karen Sandler on December 17, 2020

Earlier in the year at Copyleft Conf, we had a few sessions dedicated to the Ethical License movement. During the conference, Coraline Ada Ehmke gave a moving talk outlining why technologists and software freedom activists in particular must act against atrocities, especially those committed using FOSS. I have long argued that technologists (and especially software freedom activists) should dedicate more care and resources to the ethical use of technology and eliminating discrimination and oppression that technology often enables. While I don't believe software licenses are the best way to accomplish this task, I've wondered since the conference what FOSS contributors can do to protect human rights.

The proposed licenses have been essential to starting these discussions, but the license changes themselves seem unlikely to work: they'd introduce nonfree provisions, introduce license uncertainty and on top of that, we know that companies that would commit atrocities will ignore licenses and act from judgement-proof jurisdictions. So the question is how best to influence the behavior of companies who can improve their human rights record and how to insulate employees who want to take action to assure that their companies do the right thing.

Through our ContractPatch[1] initiative, Conservancy has been working to educate developers about employment contracts. We plan to eventually draft suggested contract language to help developers negotiate their employment contracts. While ContractPatch has moved slower than I would have liked (due to our prioritization of other urgent work), the initiative has shared good information, primarily via our talks and blogposts. I've been gratified to hear from folks that they've actually been able to negotiate better terms into their employment agreements as a result! Some have told us that they've succeeded in retaining their FOSS copyrights. Others have simply negotiated a better salary, as ContractPatch information improved their negotiation skills generally.

In the context of human rights, where FOSS licenses are unlikely to achieve the desired result, perhaps contractual demands by developers can succeed. I propose here a simple “contract patch” that can more successfully leverage developers' power in the market to prevent human rights abuses due to software.

Employees of all sorts face a difficult dilemma upon discovering unethical practices at their company. If the activity is already in advanced stages and/or the profit amounts generated from the practice are high, the employee's predicament becomes even more precarious. Should they report it to their manager or their manager's manager? If those managers all know about the activity already, will a complaint even be taken seriously? Often, the employee will have signed documents upon employment committing them to confidentiality, so the employee has little choice except to decide whether to quit or not but otherwise remain silent. For matters that concern the safety and well being of human beings, the stakes are much higher. Yet, employees have even fewer choices to ameliorate the situation. While most companies have whistle blower policies, the fallout of corporate politics can leave employees powerless.

What if those employees knew exactly how to handle the situation? What if the steps to escalate this situation were spelled out in advance? What if the employee were truly assured non-retaliation for reporting the situation? What if the employee were guaranteed a soft landing if they felt they needed to quit their job when the company took no action? In other words, what if these details appeared in their employment agreement and the employee knew they could rely on it from day one of their employment?

Amending Employment Contracts

With this in mind, we can draft a clause for employment contracts. Should an employee come to know that the company is committing violations of human rights, their employment agreement can specify the ways they can raise attention to this matter. Perhaps they first report the violation to their manager. If there is no satisfactory response or repair of the situation within a certain period of time, then the employee is to report the violation their manager's manager. If again there is no satisfactory response or action, the employee is to report the violation to the head of the department. If in that instance there is again no satisfactory response or action, the employee may post the violation on an internal mailing list or posting board. If again no action is taken, the employee may choose to terminate their employment and receive a pre-agreed severance amount — similar to the “golden parachute” provisions that executives have in their contracts. The company would also promise no retaliation against the employee for reporting the violation, including a non-disparagement provision that prevents the company from speaking negatively about an employee who opts for the severance. Each company could tailor the reporting chain to match what would make the most sense with their corporate structure. Nothing in the provision would undermine the company's confidentiality provisions with the employee, but the employee would have confidence in raising an alarm and also be able to quit while having a cushion to be able to look for another job.

Like most ContractPatch proposals, these approaches works best when the clause becomes standard. Companies are more likely to agree to these terms if many developers who interview ask for it.

This is a relatively simple solution — a good set of ContractPatch terms and a collective bargaining demand around it — is an outcome that companies can actually accept when the terms are reasonable. It protects the company's confidentiality and incentivizes employees to bring to management's attention problematic practices that the companies should have an interest in knowing about. Additionally, while the company and employee may disagree about the human rights implications of a problematic behavior, the ultimate negative result of the provision's operations is that the employee leaves the company, with a small, pre-agreed and easily budgeted financial settlement. In the case the employee is simply wrong about the alleged human rights violation, a voluntary exit is an obvious benefit to both parties. However, if multiple employees exercise this contract clause, the company then has a strong incentive to cease the violations, both financially and operationally. Alone one employee may not effectuate change, but standing together employees can have a powerful voice. Adding contract provisions like this one work within the existing corporate structure but amplify the impact that employees can have.

While I've focused my example on human rights violations, the provision could also cover endangering public health and safety or substantially violating the law.

The ContractPatch

Employment contracts often have provisions where the employee represents that they will obey laws and act ethically in the position. Here's an example of this kind of language I've seen in a contract:

Employee will act in an honest and ethical manner in compliance with all applicable laws … and comply with the policies, procedures, requirements, rules, and regulations promulgated at any time and as amended or supplemented from time to time by Employer … including Employer’s policies on sexual harassment …

Employment agreements are already the correct venue for these expectations. We can build on provisions like this to introduce the one I'm proposing here. The language itself could look like this:

“Human Rights Laws”) is defined as the United Nations Universal Declaration of Human Rights and any other applicable laws protecting the rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

An “Unethical Action” is defined as an action by Company that violates Human Rights Laws, excluding actions Company has taken against the Employee individually.

An “Adequate Response” is defined as a written response that (a) explains why there has been no Unethical Action, or (b) provides notice that the Unethical Action has ceased.

A “Planning Response” is defined as a written response that sets forth a plan to cease the Unethical Action.

Company shall act in an honest and ethical manner in compliance with all Human Rights Laws.

In the case that Employee becomes aware of any Unethical Action, Employee will report such action to their manager in writing as soon as is reasonably practicable. If Employee's manager does not provide an Adequate Response or a Planning Response within two weeks, Employee will send the report to their [FIXME - manager's manager/department head]. If [FIXME-title] does not provide an Adequate Response or a Planning Response within two weeks, Employee may report the Unethical Action via [FIXME - whatever relevant internal company-wide dissemination makes sense, whether it be an email list, posting board] (“Company Notice&Rdquo;). Employee may also provide a Company Notice in the case that the Employee has received a Planning Response but no Adequate Response is received within the period set forth for repair in the Planning Response. If the Employee receives no Adequate Response or Planning Response to a Company Notice within two weeks, Employee may terminate their employment and receive an amount equal to the greater of (i) twelve (12) weeks severance pay or (ii) twice the amount required by any relevant applicable law or statute. Company will not retaliate, intimidate or harass any Employee who reports an Unethical Action. If Employee's employment is terminated for any reason after Employee first reported the Unethical Action, Employee shall receive an amount equal to twelve (12) weeks severance pay. Nothing in this provision contradicts, supersedes or diminishes Section [FIXME-CONFIDENTIALITY] of this agreement. However, if Employee terminates their employment pursuant to this provision, Company will not engage in any disparagement of the professional or personal life of the Employee.

This text is a first draft and edits and suggestions are welcome on the Contract Patch mailing list .

No software developer expects to encounter human rights violations or unlawful activity using software when they take a new job. But history shows that it will and does happen; Coraline's talk is an excellent list of known examples. Introducing new clauses into employment contracts is a practical way to align the interest of all parties, while providing simple mechanisms to raise attention to and end problematic behavior. Developers usually have more bargaining power than most workers. Let's use that to make sure we compel our employers to behave ethically and provide us the safety to stop providing them with our services if they don't!




[1] While I'm a lawyer and many of the people who have worked on ContractPatch are lawyers, Conservancy doesn't provide legal advice and so ContractPatch isn't meant as legal advice. Please use the language as a starting point or as an example for you to work on with your own lawyer to figure out what works for your situation.

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Tags: ContractPatch

ContractPatch: Supporting Maintainers in Employment Agreements

by Karen Sandler on 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

Tags: ContractPatch

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

ContractPatch, Step 2: Understanding the power balance

by Karen Sandler on September 26, 2016

Employment agreements are one of the things that I'm asked the most regularly about in the free and open source software world, almost rivaling questions about licenses. My responses have always been the usual lawyerly responses of This Is Not Legal Advice and while I Am A Lawyer, I Am Not Your Lawyer (I'm generally not acting as a lawyer on behalf of Conservancy as its Executive Director either). But even from my early days of being involved with free software, I have seen that there's a lack of understanding about employment agreements and the ability of employees to get their agreements modified. Last month, Fred announced a new initiative that we are working on together, called ContractPatch. With ContractPatch, our goal is to help provide knowledge to employees, along with sample language for better contract terms. The first step in this process is understanding the dynamics at work in employment arrangements. Step 1 is knowing that everything is negotiable and step 2 is knowing where you stand in the negotiation. Quite simply, you likely will never have as much power as you do the moment just before you sign your employment agreement.

At the point you are presented with a job offer, your prospective employer really wants to hire you. Chances are, they've screened and interviewed a number of candidates and put a lot of work into the process. Your manager has thought deeply about who they want in the position and has probably imagined how it will all work out with you in the role. Both you and the hiring decision-maker(s) are probably very optimistic about what you'll accomplish in the role and how well you'll get along working together. At this point, no one wants to go back to the drawing board and start the process over again. You will be excited to start the new job but it's worth taking a step back to appreciate the unusual position you are in with your new employer.

As part of the hiring process, you'll be expected to negotiate your salary (this can be complicated) and finalize all of the terms of your employment. Terms of employment can also be looked at through the lens of compensation, and asking for more favorable terms in your employment contract can be another kind of perk an employer can give you if they have a tight budget. A classic contract negotiation tactic (I even learned this in law school) is to make an agreement stronger in the first draft than you really need it to be, just so that you can give something away when pushed. This is certainly true of many company's standard agreement templates. The only way to find out is to ask.

Once you take the job, it's harder to change your terms of employment (though it's possible, as we'll cover later). Think hard about the long term impact of signing the agreement and whether things could happen down the road that would make you feel less comfortable with working under those terms. We'll be giving you some examples of situations you want to be prepared for when we talk about specific contract provisions.

Asking for more favorable terms doesn't have to be an adversarial process. You can ask for an agreement to be amended in a friendly way. Employers often respect workers more when they advocate for themselves.

So, we'll help you think about how to engage with your employer while anticipating things that could go wrong down the road and how to ask for more favorable terms. You can sign up for our mailing list to be part of the conversation. While it may be easier to avoid negotiating your agreement, don't trade short term comfort for your long term benefit.

Tags: conservancy, ContractPatch

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