Company laptop vs resources?

[mlinksva]

Is there a contradiction in these two bits (emphasis added)?

Why is this? ... The Company isn't interested in misappropriating your personal work and doesn't believe that a project belongs to it simply because you happen to have used your Company laptop when developing it.

...

What the Company owns ... was developed or promoted with Company branding or resources

("Company" is "GitHub" in the current agreement we use, obviously.)

[mlinksva]

OK, maybe there is no contradiction because (emphasis added, already italicized in original):

As between you and the company, the Company owns any IP ("Company IP") that you are or have been involved with as its employee, but only under one of three conditions: The work (i) relates to an existing or future Company product or service at the time you developed. invented, or created the work, (ii) was developed for use by the Company, or (iii) was developed or promoted with Company branding or resources. "Company IP" includes concepts, designs, developments, discoveries, ideas, improvements, trade secrets, and any other original works of authorship. By signing this agreement, You grant or assign to the Company all rights and interests in all Company IP, including any Company IP that you have developed or are developing before, through and beyond the date you sign this document.

[mlinksva]

(But if "as its employee" means work done in free time on company laptop is not company IP, does it also mean work relating to an existing or future company product is not company IP, so long as it is done in free time?)

[seanlee14]

It looks like to me that there may be a contradiction.

Definition of an employee by Merriam-Webster and IRS both define an employee as someone working or providing service for another and does not condition the status of an employee to work hours. It seems to me that if you are an employee, you are still an employee during off-hours or free time.

The first clause,

Why is this? ... The Company isn't interested in misappropriating your personal work and doesn't believe that a project belongs to it simply because you happen to have used your Company laptop when developing it.

states that the act of using the Company laptop by itself does not cause that work to be the property of the Company. However, the second clause,

What the Company owns ... was developed or promoted with Company branding or resources

essentially states that a work created/contributed/developed on a Company resource (Company laptop) by an employee means that the Company owns that work.

The key issue here is determining what the definition of an employee is. Although I didn't find an explicit definition that defined an employee as being conditioned to work hours. The lack of this finding may suggest that an employee is not conditioned to work hours, thus suggesting a contradiction between the first and second clause.

Definition of employee by Fair Labor Standards Act (FLSA)

In order for the FLSA’s minimum wage and overtime provisions to apply to a worker, the worker must be an “employee” of the employer, meaning that an employment relationship must exist between the worker and the employer. The FLSA defines “employ” as including to “suffer or permit to work”, representing the broadest definition of employment under the law because it covers work that the employer directs or allows to take place. Applying the FLSA’s definition, workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees. On the other hand, independent contractors are workers with economic independence who are in business for themselves.

[mlinksva]

Here's the California statute:

2870.  (a) 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
   (2) Result from any work performed by the employee for the
employer.
   (b) To the extent a provision in an employment agreement purports
to require an employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision
is against the public policy of this state and is unenforceable.

Just to spell out my confusion/question in another way, it seems both our agreement and state law cover following dimensions:

1. work done using company resources
2. work done as an employee
3. work relating to company business

State law allows employee IP agreements which make anything company IP for which any of 1-3 are true. Our agreement makes 2 controlling. Under our agreement, work is company IP only if 2 is true, and either 1 or 3 are also true, but "involved in" is a bit more than just work done as an employee ... another way to think of it is that we don't care about (1), and we treat (2) and (3) in a bit more nuanced way - work relating to a company business that the employee is involved in is company IP.

Is my understanding correct? It's reflected in e61efba on #12

[mlinksva]

@seanlee14

It seems to me that if you are an employee, you are still an employee during off-hours or free time.

Yeah, "free time" probably not accurate, especially for salaried with extremely flexible hours, like many GitHub engineers.

The "involved with as its employee" language in our agreement seems great, it's just taking me some time to appreciate and correctly understand its implications.

[seanlee14]

The "involved with as its employee" language seems to make the overall idea more clear, but it's also taking me some time to fully comprehend it's implication.

I'm finding it hard to draw a clear line between activity involved as an employee and not an employee. Especially because yesterday the interns had a lunch and learn with Merritt & Nicole from HR about diversity. They talked about how one of the hiring criteria is to increase diversity in the workplace and that they are investing in us (new-hires and the interns) to go out there and talk about how awesome, diverse, and cool place GitHub is.
If that is one of the reasons for my employment, is sending a personal email/chat to a friend to talk about my work experience part of a work that I was hired to do, thus does that constitute as a work as an employee?

However, maybe it's not proper to extend diversity into the scope of employment, which then I believe the language "involved with as its employee" seems to work well.

[jessephus]

I think these contradictions were resolved in the updated text.

Closing, but feel free to reopen if you disagree.