Non competes are illegal in California. But while you are employed by a company I believe that most contracts require that even outside of work the company owns your IP unless otherwise stated - that's why there's a bit in your contract where you can specify prior inventions and whatnot, I believe.
Every company I've worked for has had it this way.
> most contracts require that even outside of work the company owns your IP unless otherwise stated
Assuming the outside work was performed on the employee's own time/equipment and doesn't compete with the employer's business, such contracts would be unenforceable in California. See section 2870 of the California Labor Code: https://leginfo.legislature.ca.gov/faces/codes_displaySectio...
> Assuming the outside work was performed on the employee's own time/equipment and doesn't compete with the employer's business
The rule actually encompasses more than simple competition, but in any case work on OS components for an alternative (and therefore competing) OS for the employer’s hardware for which they also sell proprietary OS software does compete with the employer’s business, so... (The particular thing the employee was denied permission to work on seems to be VNIC for IBM Power)
> Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
> (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer or ...
I am not a lawyer, but I think it would not be unreasonable to believe that work on the kernel would be related to IBM's business (like RedHat).
Its not just that it doesn't compete with the employer's business but if it is related to the employer's business.
Furthermore, while the own time/equipment is there, there is also trade secret information mentioned beyond the time and equipment constraint.
Here it's not just work on the kernel, but work on the kernel on a driver for IBM hardware that two other IBM employees maintain, and that the employee in question was -also- previously a contributor to during work hours.
Yep, that "employer's business" part is relevant here. The person in question is writing a kernel driver for an IBM hardware while being an IBM employee. IANAL but I'm pretty sure that means "Employer fully owns employee's work" even in California.
Oh yeah, true true. You'll want to avoid using any company time, equipment (including the network), code, etc. and that should cover you, i think, but only so long as your work doesn't "compete" with your employers iirc.
I believe California employment law is pretty pro-employee. Mostly if you develop something in your spare time, without using company resources in any way, it is yours.
I think that's why there are lots of startups in california.
In other states, employers in some cases can own everything, up to and including ideas in your head.
I don't know an example state that is the other side of the coin, pro-employer, but maybe texas? (uneducated guess)
This provision is useless if you work for a large company, because it carves out an exception for anything that could be related to your employer’s business.
In practice it means at most they should've called him on the phone and not leave an email trail. You do what your boss wants, or you're out of a job. Outside California and inside California.
