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Minor Gripe

2019-07-02 -- Towards better employment contracts, pt. 1

Chris Ertel

A sketch of the problems

The current situation harms workers, it harms consumers and society, and somewhat unintuitively it hurts most employers themselves.

Problems for the worker

Developers unlock or maintain vast economies of scale for companies, allowing profits at scales almost unseen in the history of mankind. At the same time, it seems that developers are increasingly cut off from the fruits of their labor and treated more poorly than they deserve.

In many cases, we see things like:

(And that’s before we even get into more anecdotal reports.)

This in turn leads (understandably) for calls to unionize. I suspect that while many of us are not ready to march on our workplaces arm-in-arm singing songs of liberation, most of us probably would agree that something is off.

All of this arguably begins at the signing of an employment contract. We often sign away and find ourselves in a situation without:

If we want to fix this, we must stop employment contracts that force workers to act against themselves.

Problems for the consumer and society

A very large chunk of the problems we face today are caused directly by software. While a complete accounting is far outside the scope of this post or the skill of the author, developers are responsible for such things as:

While I refuse to believe that all of this (with the possible exception of the last example) is due to deliberate malice, I can think of a number of complicating issues that once again stem from employment issues, including:

These (now fairly common) circumstances and clauses serve to stifle and cow developers into remaining silent while working on things that might harm other people. Even if the profession’s code of ethics tells us how to handle a particular situation, the fact is that it is downright terrifying knowing that our contracts may bind us to a decades-long legal fight. If you have any doubt of this, consider that the SCO Group, Inc. v. International Business Machines Corp. case has been going through for over 15 years. Every company has similarly vested interest making sure that their employees do not get out of the above obligations—whatever the reason—and so a fear of being dragged into court pour encourager les autres.

Society can not be served by the warnings of developers if those developers are too afraid to speak.

If we want to fix this, we must stop employment contracts that punish workers for helping society.

Problems for employers

And at the last, we see that employers themselves are actively harmed by the ecosystem these contracts create.

Vast opportunities for business have been realized when employees were able to move employers. Under today’s common restrictions, it’d have been almost impossible for Fairchild to hire the folks and get the ball rolling on what today we know as Silicon Valley. That oversight created billions, perhaps trillions, of dollars of opportunities for businesses and investors!

(Coming from Texas, it frankly galls me to see my home state handicapped in the tech market when competing with California due to its lack of support for workers in this regard. It’s hard to hire for a Texas startup when the deal is frankly so much better for employees of California companies, because there the law doesn’t let employers shoot themselves in the foot with certain types of employment contract restrictions!)

Additionally, at least for developers, there is increasing awareness that the common motivating tool for retaining employees and encouraging them has gone by the wayside:

In the past the founders and employees were aligned with the same type of common stock grant, and it was the VCs who got preferential stock treatment. Today, if you’re an employee you’re now are at the bottom of the stock preference pile. The founders have preferential stock treatment and the VC have preferred stock. And you’re working just as hard. Add to that all the other known negatives of a startups– no work-life balance, insane hours, inexperienced management, risk of going out of business, etc.

For everybody but FAANG and finance companies—so, again, startups!—there is a problem in finding ways to encourage their employees to align with what’s good for the employer and to do their best work.

If we want to fix this, we must stop employment contracts that stifle the innovation and smother the ecosystem employers depend on.

Conclusion for part 1

I’ve gone through the three major groups impacted by the conditions of employment for developers: the developers themselves, society at large, and employers. I’ve hopefully made the case that a lot of the issues these groups face stem from issues that arise at the earliest stage in the employer-employee relationship: the employment contract.

Next time, I’ll attempt to sketch out an incremental step we can do to make things better for everybody involved.

Without having to unionize the workers, hoodwink society, or nationalize employers we can still attain meaningful relief of these problems—all by just streamlining and simplifying employment contracts!


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