Admittedly I'm on the upper end of the experience scale, but I think there's a lot more wiggle room than most people realize. Also, this is a pretty decent litmus test for an organization - I would avoid companies run by their legal departments.
Hold on, everyone! My parent(^) said something simple, yet it is powerful. I don't believe s/he realized they were providing such insightful information, but the little gem that makes a huge difference is in that short quote.
While many companies may not be flexible with their contracts, I love your approach. Surely the odds of success must improve - if only slightly - by simply pointing out undesirable clauses and requesting that they modify and reissue the contract to accommodate, rather than striking it out in red ink yourself and shoving it back in their faces as an ultimatum.
The former tactic de-escalates the issue to being a reasonable request from a respectful person, while the latter comes across as coming from an immovably stubborn personality who may bring a habit of causing drama into the company. Better to politely identify how the employer can effect a positive difference on your end, rather than railing against the company's policies with your demands before you've even been hired. "My way or the highway" doesn't sound very amiable.
How often do companies reject red-inked contracts, not because they are unwilling to amend the contract, but because their intuition has triggered them into avoiding your coarse methods of getting what you want? Seriously, this is quite eye-opening. You've made me rethink my negotiation phase. I will be unapologetically thieving this diplomatic approach for my personal use in the future. Thank you!
In most jurisdictions outside USA, unlimited non-compete and indemnification clauses are not enforceable anyway. Here in Brazil there are special "labor" courts that are very favorable to the employee - most contractors here will countersue in a labor court if the client try to enforce this kind of clause.
It's better to politely request that the "undesirable" (ie: illegal) clauses be removed from the contract, rather than using red ink on the contract you were sent and submitting it as an ultimatum. Either way, you wouldn't work for them unless the changes are made. The result is the same; it's all about how you approach the matter - namely, with diplomatic tact. You give the company a chance to amend the contract in your favour on their end, rather than attempting - and possibly failing - to force their hand with a revised contract on your end.
You might be in a region where such clauses are not enforceable, but if you say "hell no that's illegal!", they'll trash your résumé and hire someone else who doesn't make such a fuss. The person who winds up being hired was just a "better match" and the "position was filled". You could always sign a contract with "unenforceable" clauses without complaining, and hope the law ultimately agrees with you... but do you really want to take the risk of falling on the wrong side of the law?
Put it this way: if you strike out the contract with red ink, here is what the employer sees: "Fuck you, you can't fucking give me fucking clauses like that. It's fucking illegal, so I have fucking stricken out that fucking bullshit clause 2.1, and you had better fucking accept me as a fucking employee anyway, you fucking pieces of fucking shit! Accept the fucking contract I have sent you with fucking red ink, and fucking hire me already!".
Versus: "Section 2.1 would prevent me from seeking employment upon leaving your company. That clause is not legally enforceable, so it would be better for both of us that I not sign this. I will sign a contract with provisions that I will not poach your clients or work for a direct competitor in your field for a period of X time. If you could please revise the contract, I will sign it and you will have me as your newest employee!"
So what if you calmly request these changes be made, and the company refuses to make the amendments to your contract? Of course you refuse to work for them. Maybe even sue for their illegal practices if you can afford the legal fees. The idea is not to accept unacceptable contractual terms. The point is to allow the company to believe they are accommodating your polite requests, rather than you having made non-negotiable demands as an ultimatum. It's a mind game that gives the illusion that the company is is control, while you hold all the cards.
The end result is the same. Either you will accept the contract or you won't. You're just being diplomatic, attempting to elicit a reaction from the employer that is in your favour, rather than making the scenario a one-sided "my way or the highway". Let the company believe they are obliging you instead of crumbling under pressure.
Yet what does an employer think if a candidate indicates that they have involved their own lawyer during contract negotiations? Perhaps it's a normal occurrence in major centres (ie: Silicon Valley), or maybe even across the US. I have never heard of a single one of my 1000+ peers over 15 years of experience having done so in my country (Canada).
The very act of engaging a lawyer to read through one's employment contract here would be seen as an aggressive attack against the "integrity" of the employer's business. Red flags galore raised about how this person would be a risk to employ, should they go running to a lawyer over every little grievance.
If I had a lawyer make amendments to my contract and sign off on it, and slipped to my prospective employer that this act had taken place, I'm quite sure my résumé would hit the bottom of the recycling bin within seconds of my name being added to a blacklist of "never communicate with this person ever again; do not reply to their emails, hang up the phone the moment they give their name, call security if they show up at the front desk, etc.". I would be unemployable if I even mentioned the word "lawyer". I suspect cultural differences, with the US being desensitized to the presence of lawyers in an abundance of everyday situations?
So, no lawyer for me. I much prefer the idea of requesting that the company amend the contract themselves to accommodate me, rather than red-inking it myself. Maybe Canadians really are too polite? ;)
tldr; In Canada at least, red-inking your contract on your own has a chance to succeed. But involving a lawyer would make employers avoid you as a high-risk hire.
In a big company the manager wanting to hire you might not have the power to overrule the legal department. In a smaller company however you might get hired by the CTO or CEO himself, the contract has been written by a contractor lawyer and if we wants you he'll change the terms.
I just explained my case logically, respectfully and directly (face to face) to my line manager. My case was:
- Its understood that I will not work a second job. Though I will volunteer for some charity.
- Considering my domain expertise, I am more likely to get a job in a similar domain. If my future employer demands me to implement the same tech as my pervious employer, its a red flag that this company is clueless and will sink soon. If I volunteer the details of my previous companies operations, it just means that I am untrustworthy and I will not be trusted in the new company. So sharing details of my previous job is a bad idea.
The 4th company manager was not even willing to discuss with me about my agreement and wanted me to go to the legal dept directly. That was clear sign that this was a very bureaucratic and not suited for me.
Of course, I have only worked in small to medium sized company and they was no secret algorithms worth in the millions or billions involved. That I am sure is a different case, like the current Google vs Uber over the tech stolen by Otto from Waymo.
You can negotiate successfully with the former, but not the latter.
Of course I have the advantage of living in a place where there's plenty of work. If jobs are scarce where you live, that significantly changes the labour market.
Much harder to do this in a bureaucratic company that has been around forever since they tend to be pretty inflexible on everything except salary/benefits.
E.g. "I'm very interested in the position we discussed, but would like to discuss clauses X, Y, and Z. These pose a problem for me for reasons. If this is something you could be flexible on, I'd love to see what we can agree on! If these aren't clauses that can be changed, I feel that salary +A and benefits +B would be more in line with what you're asking for."
If phrased like that, you're putting the "choice" back in their hands, but making it clear just how much these things are worth to you.
They may say "Neither of those options works for us," but the difference is that they're making the decision to torpedo your hiring over one of their own clauses. Imo, it's much more difficult to say "These clauses are worth A & B" than it is to say "These clauses are super important."
When contracts are redlined in any way, even relatively small companies have procedures in place to require review by the legal counsel. As soon as you introduce lawyers, the delays kick in and nobody is happy.
I've tried that cute "strike out the stuff in your employment agreement that you don't agree to" move, and in ALL cases, received a stern note from the corporate legal department a few days later basically saying "Sign it unmodified or GTFO." I don't know who all you Captains Of Industry are who have the power to negotiate these things, but I've found employees basically have no ability to change them.