Ivan,

Please see below.

JaMi

----- Original Message -----
From: "Bagotronix Tech Support" <[EMAIL PROTECTED]>
To: "Protel EDA Forum" <[EMAIL PROTECTED]>
Sent: Saturday, September 06, 2003 12:14 PM
Subject: Re: [PEDA] OT employer topics WAS: License Legalities


> > Sure, you should work for your employer when he's paying your salary.
> >  But, I have
> > heard of so many cases where a guy who designed aerospace parts, for
> > instance,
> > thinks up an idea for a better fishing reel, on his own time, and ends
> > up having to
> > give all profit to the employer.  (There are, I'm sure, lots of cases
> > that can be
> > found where the employee used some facilities or company time to develop
> > the product, that changes the picture very much.)
>
> It never ceases to amaze me how in so many instances, mandatory overtime
> without pay is never considered as a fair trade for usage of company
> resources.  For example, my father is the Engineering Manager for a
> well-known air compressor company.  For the entire time he has worked
there
> (10+ years now), he has had to put in more than 40 hours per week.  But
> since he is salaried, he only gets paid a fixed amount.  The extent of his
> usage of company resources for personal benefit is:  photocopies, paper,
> pens, scotch tape, occasional shipping of small packages via UPS.  Big
> Whoop.  He doesn't even surf the internet on company time, in fact he
avoids
> use of e-mail because it is only a tool others use to cover their asses
with
> ("Oh, didn't you get my e-mail about that?").  And yet, memos circulate,
> saying that employees are not to take office supplies for personal use.
No
> one has ever confronted him about it, maybe because they realize how
> indefensible their position would be.  So my overworked father uses some
> office supplies for personal use.  Is he justified?  Darn right he is.
>

Is there a difference in walking out the door with a pen in your pocket that
you have been using all day and which will probably come back to work and be
used all day tomorrow, or on the other hand, going into the supply cabinet
and taking a handful of pens to take home?

I think that there is, and I think that most people would agree.

Regarding the " . . . occasional shipping of small packages via UPS", no
comment.

And regarding the "But since he is salaried, he only gets paid a fixed
amount" syndrome, most of those that do work as salaried employees do expect
to have to put in an occasional bit of overtime, and understand that it is
all part of the job, and I would say that most people do in fact consider
that when negotiating the salary to begin with. I know that I myself have
specifically told my bosses that if they want x number of hours OT as the
rule of thumb, then they are going to have to calculate that into my salary
and pay me more accordingly. On the other hand, most bosses are also willing
to compensate the OT required for the occasional unscheduled emergency with
liberal amounts of "comp time", which would be your "fair trade".

> In places I worked before I started my own business, I refused to sign
> employment agreements that had language to the effect that any personal
> inventions belong to the company.  As a result, I didn't get too far in
the
> employee world.  I did have jobs, but never achieved much rank, always low
> man on the totem pole, and the first to get axed when times got tough
> (motto:  when the times get tough, the tough get axed).  So I started my
own
> business.  And life is good...
>
> I think it is fair that an employment agreement could have language
> stipulating that the company is entitled to a small portion of the profits
> or shares of any invention the employee creates using company resources.
In
> the example above, if the fishing reel was made using the company's
machine
> shop, and drawings were drawn on the company's CAD system, maybe 5-10
> percent of the profits or shares would be assigned to the company.  But
not
> the whole thing, that's just pure greed!
>

Most, if not all, invention "Assignment Agreements" allow you to make
exemptions for any ideas or inventions that you already have, and even those
that you state that you plan to continue to work on, own your own time. As a
legal practicality, most "Assignment Agreements" are usually only
enforceable where the "scope" of the invention is within the "scope" of the
Company's business. As mentioned in a parallel post to this original topic,
the State of California has provisions in its Labor Code that specifically
address the issues of whether an invention is within the scope of the
Company's business, and additionally, whether the Company's resources were
used to develop the invention.

Unfortunately, in the above example, you specifically state that the
Company's facilities as well as resources were used to build the prototype
fishing reel, and any Court in the land would say that that makes the
fishing reel the property of the Company, and would rule in favor of the
Company every time. In the absence of some mitigating circumstances, I would
totally agree with them.

There are realistic limits on everything, and I think that that is being
overlooked here. If I was an "Order Taker" at the local MacDonalds Hamburger
joint, and I was paid accordingly only to take orders, and I invented and
developed a better deep fat fryer that would make better french fries, would
MacDonalds be entitled to take my invention away from me? Probably not. But
on the other hand, If I worked for MacDonalds as an Efficiency Expert and
Product Developer, and was paid accordingly, MacDonalds would have every
right to expect that the Patent would be assigned exclusively to them,
because that is what they are paying me to do.

Most people concerned with this forum are employed minimally in at least a
semitechnical if not technical capacity, where they are being paid to think,
or perform a task that requires them to think. More specifically, they are
being paid to solve problems. Thinking of a better way to solve the problem
is part and parcel to the job that they are being paid to perform.

I have personally gone thru some pretty nasty litigation over the ownership
of my own Patent, where I was being sued by a Corporation, and where I was
virtually an indentured servant to my own Attorney who was defending me, and
where I had to spend a large number of my Saturdays over a two year period
going down to the Los Angeles County Law Library with him, so that I could
be his Paralegal, not only doing Legal research work my own case, but on
many of his other cases too, or when I was not doing that, I had to work for
him doing "Patent Drafting" (Inking on Strathmore), all so that I could
"work off" his retainer which accrued at the rate of $100.00 a month (this
was back in 1978). As a result of this experience, I have a very good
understanding of the Legal issues involved with this area of "Assignment
Agreements", and other issues related "Employment Agreements".

I am somewhat surprised at your stance above when it comes to what an
Employer seems to "owe" an Employee, or what an Employee has the "right" to
be able to do at the expense of his Employers time and resources.

But then again, quite possibly you only consider this where other Employers
are concerned. Are you this liberal when you are the employer? See below.

Please do not take this in the wrong way, since realistically there is
usually some amount of "quid pro quo" involved in any job, and where it is
above board, and with everyones knowledge and permission, then I see
absolutely nothing wrong with it.

But on the other hand, there seems to be a pervasive attitude that is quite
rampant in industry today, at least here in the United States, that states
that "I am only going to work for 6 hours a day, but you better pay me more
than I am worth and pay me for a full 8 hours a day, and I am going to spend
the other 2 hours a day either sitting on my can doing nothing or working on
a G-job".

> By the way, I have asked employees to put in overtime only twice in the
past
> 3 years.  Employees should be willing to put in occasional overtime, and
> without pay for those who are salaried.  But to require overtime as SOP
> (Standard Operating Procedure) indicates that something is wrong with an
> organization.  And that something is usually the guy at the top ;-)
>

I concurr.

By the way, what would you yourself do if your own little Company needed to
get a certain job done for a Customer, and you walked up behind one of your
employees who was supposed to be working on this job, and you found him
working on his own little project, on your time, and you realized just by
looking at what he was doing, that he had to have spent the last three days
working on his own little project?

What would you really do?

> Traditional method of business financial management (The Old Capitalism):
> 1) Pay employees
> 2) Pay bills
> 3) What's leftover goes to company owners and stockholders
>
> Modern method (The New Capitalism):
> 1) Pay CEO
> 2) Pay CEO some more
> 3) Pay CEO still more
> 4) Pay into CEO pension fund
> 5) Fire CEO
> 6) Pay CEO termination bonus (golden parachute)
> 7) No money left for payroll, so fire lots of employees
> 8) Restate earnings to avoid SEC investigation
> 9) Sell off company assets to make balance sheet look better
> 10) Outsource workload to cheaper labor markets (India, China, etc.)
> 11) Fire more employees, because of (10)
> 12) Show improved profits, because of (9-11), boosting stock price
> 13) Insiders sell company stock while the boost is in effect
> 14) Tech suckers buy company stock, thinking it will eventually rise to
late
> 90's levels
> 15) Company stock tanks due to market shifts, poor quality of outsourced
> work, and customer dissatisfaction
> 16) Stockholders initiate lawsuit alleging stock fraud
> 17) SEC launches investigation into insider trading
> 18) Hearings held, nothing happens
> 19) Perpetrators (the former company officers) beat the rap
> 20) Perps bask on beach in Cayman Islands while stockholders lost their
> shirts
> 21) Cycle repeats at some other company
>

I think that we should hunt down everyone who is a Stock Broker or
especially anyone who has an MBA, and deport (or export) them, or at least
make it unlawful for them to practice their "black art" of "juggling the
books" and continueing to  destroy the economy.

Some of these idiots need to be locked up and have all of their possessions
confiscated, just as if they were a drug dealer, since they are actually
doing more to undermine and destroy our society.

> Best regards,
> Ivan Baggett
> Bagotronix Inc.
> website:  www.bagotronix.com
>
>
> ----- Original Message -----
> From: "Jon Elson" <[EMAIL PROTECTED]>
> To: "Protel EDA Forum" <[EMAIL PROTECTED]>
> Sent: Friday, September 05, 2003 7:13 PM
> Subject: Re: [PEDA] License Legalities
>
>



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