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游戏从业者应先谈判后敲定雇佣合同条款

发布时间:2012-03-27 13:51:06 Tags:,,,

作者:DARIUS KAZEMI

介绍

近期,我注意行业中存在的一个重大的知识缺陷:我的同辈中几乎没人理解合同谈判,尤其是雇佣合同的谈判。

这是个很大的问题,因为这可能导致许多开发者陷入令人困惑和压力重重的境地,而这是可以通过恰当的措施避开的。我希望,本系列文章能够帮助部分开发者避免陷入此等困境。

contract negotiation(from chestercountyfop.org)

contract negotiation(from chestercountyfop.org)

声明:我不是律师。本文中所谈到的内容不可被视为法律建议。我主要阐述的是合同谈判的通用准则和雇佣合同中应当包含的内容。本文中所谈到的方法只适用于美国地区,因为我对其他国家的法律或合同谈判礼仪并不了解。本文的内容可能与你掌握的内容有所冲突。这些建议适用于已具备些许职业经验的游戏开发者,如果这是你走出校园的第一份工作,或许你应当签订合同为自己的职业生涯奠定基础!最后,如果你有任何与法律相关的问题,请咨询律师。

最重要的东西

首先,你对雇佣合同应当有这样的理解:雇佣合同是可以谈判的。许多开发者不理解这个简单的事实!他们觉得雇佣合同是个要么达成要么放弃的交易。

这个层面的理解并不难。假设你正在找工作,在数周甚至数个月的时间内,你经历的过程包括投递简历、电话交谈、面试、薪资谈判、收到录用通知书和签订雇佣合同。你或许会觉得在这个时候谈判显得有点忘恩负义,因为他们很显然想要你,希望你能够去工作。但是,这种想法是完全错误的。

希望你能够在此刻阅读你的合同。有些人在签订合同前并不阅读,这些人与傻瓜无异。或许你会看到一个条款,公司拥有你所有的“发明”。或许你会看到合同上写着,离职后1年内不可从事游戏行业工作。或许你会看到完全无法理解的条款。

在阅读合同后,许多人认为他们能够做的决定只有一个:如果喜欢的话就签订合同,如果不喜欢的话就放弃这份工作。事实在于,你现在看到的合同并非一定是你最终签订的合同。合同是双方的法律协定。这里,“协定”是关键词。谈判的整个过程就是你与雇主达成协定的过程。

本文所包含的内容

我将在本系列文章中阐述的话题包括:

1、为何你需要勇敢同雇主谈判

结果并不会像你认为的那样糟糕

2、为何你不应当轻易相信他们的口头承诺(游戏邦注:比如“相信我们,我们不会强迫你这样做”)

通过某些可靠的方法可以表现出你并非不相信他们的承诺

3、合同中应当包含的内容以及你可以提出的合理修改建议

IP分配

无竞争

4、合同谈判的详细机制

当你递交修改后的雇佣合同时,应当在邮件中写哪些内容?

你要如何修改合同?你要使用何种软件?

你要如何向对方呈现自己是在理解合同的基础上做出修改?

你要如何老练地应对这种情境?

你应当期望能取得何种讨价还价的结果?

故事

现在,你已经同这家游戏工作室面谈了两周时间。如果从最初的简历投递算起,你们已经接触了两个月时间。他们询问了很多问题,为你的住宿和饮食买单。这是个漫长的过程。你不得不告诉当前雇主,自己家里有点事,需要你请假打理。你不能在Twitter上发布自己已经离开所住城镇的消息。你感觉自己像是个间谍。

结果出来了,你通过了他们的审查。他们喜欢你,愿意向你提供这份这份工作。你可以制作自己非常感兴趣的游戏,新工作室有着令人惊叹的团队,甚至有些人是你景仰已久的。你获得了需要承担更多责任的岗位,但制作出成功产品的可能性也更大。你一直都在寻找这样的机会。

然后,你看到了雇佣合同。合同中有很多条款,有些令人感到害怕,有些显得乏味无趣,有些很难理解,尽是些有关“IP分配”和非竞业的内容。你浏览了整个合同,尽自己所能理解其中的条款,发现合同规定你在受雇于该公司时不能再为其他项目工作。当你受雇于此时,你不能考虑开展其他项目,受雇期间产生的任何想法都属于公司。如果你离开该公司,1年内不能再为其他游戏工作室工作。

这简直令人难以置信!但是,情况或许不像想象的那样糟糕,不是吗?公司里的人似乎都很不错,连高级管理人员都是如此。而这成为你想在这里工作的全部理由!尽管合同中有离职相关规定,但是他们不会真正妨碍你在离职后找新的工作,不是吗?你向人力资源经理询问个人项目的相关事宜。他们向你保证,公司不会妨碍雇员开展其他项目,只要他们不利用公司的资源和上班时间。

如此棒的工作,如此棒的公司,他们甚至向你提供高达2.5万美元的薪水,比你现在赚的更多!如果还大加抱怨,未免有点不厚道了!如果你要求他们移除合同中的部分条款,他们或许会选择收回录用通知书。

你认为,这份工作是此生唯一的机会。最好是马上签订合同,对那些条款应当无需多虑。

3年时间很快就过去了。你制作完成了那个令人惊叹的游戏。它成为了市场巨作。于是,你被安排继续开发游戏续作,但是此刻你已经对它感到有点厌烦。你很喜欢这些同事,但是确实不愿意再讨论过多有关这些游戏的问题。

对于你自己的游戏,你产生了很棒的想法。你已经同其他工作室的某些好友讨论过这些想法。你想要同这些好友一起合作,自行开设工作室,尝试挑战主管级别的岗位。这个公司确实能够提供良好的团队领导环境,而且能够让人获得丰富的经验,但是已经没有新主管存在的空间了。他们所需的主管已经满员,而且没有人有近期调离这些岗位的计划。

但是,此时合同便会引起你的注意。你已经多年没注意过它,但是现在它每天都会给你造成困扰。的确,公司从未妨碍任何人离职和立即创建新工作室,但据你所知,还没有人这么做过。你签订了合同,公司完全可以照合同办事。你的公司有许多很棒的律师,如果他们在你创建新工作室后找上门来,可能会影响到你整年的生活。

即便你成功创建了工作室,如果你的当前雇主发现你的新项目起源于受雇期间,又会如何呢?对于你自己的项目和你为公司开发的项目,很难完全将时间和资源的投入区分开来。你的确已经在自己的项目上花了数年的时间!假如他们随后告诉你,你的游戏属于他们,会怎么样呢?

你想到3年前签订合同的那一天,你觉得自己应该与公司谈判。

随后,你得知了一个事实,你的公司极度缺乏拥有你这些技能的员工。你是他们为这份工作而面试的第6个人,对公司来说这是个漫长且昂贵的过程。你不知道,当时自己正可以讨价还价。你可以很轻易地让他们修改IP分配条款,使它只适用于与公司旗下与宇宙飞船游戏有直接竞争关系的游戏。你甚至可以让他们完全放弃非竞争条款。

但是你当时并没有这样做,现在你所面临的重重压力完全可以通过3年前数天的电子邮件交流来避免。

不要害怕

以上故事的重点在于:不要害怕与雇主协商雇佣合同。不要用无关紧要的想法来欺骗自己。我所认识的几乎所有人都没有就这些合同与雇主谈判,而且几乎所有人都在离职时面临重重压力。

不要觉得,那些人在雇佣过程中表现友善,就不会去严格执行合同中规定的条款。

与你交谈的人或许会向你保证,公司从未因合同条款而起诉离职的员工,不要落入这种陷阱。我讨厌这种谎言。幸运的是,对于所有这些策略,我们可以进行适当的回应。

人事经理:“哦,我们从未因非竞争条款起诉过雇员。此前有很多人离职前往新工作室,这个条款的存在是为了防止主管泄露公司机密。我们不会对你这样的员工采取措施。”

你:“我相信你不会对我这样做,你们看起来很友善,这正是我想和你们合作的原因。但是,如果公司被其他公司收购,情况又会如何呢?我的合同被递交给其他公司,负责雇佣合同条款执行的主管和法律团队可能都会被更换。这些人可能会严格执行合同中的条款。因为我不是项目主管,而你说这些条款的存在是为了约束项目主管,所以我认为它也不适用于我。如果我的合同中不包含这个条款,那么我觉得与您合作会更加愉快。”

通常情况下,这样说就会让他们哑口无言。

总之,不要担心他们会因为你谈判合同就收回录用通知。假如你让他们修改合同中的内容,你要提供清晰合理的解释。比如:“这个非竞争条款规定,我在离开公司后365天内不能从事相同的职业,我无法接受这个条款。”99%的情况下,如果他们确实希望合同中包含此条款,他们会回复道:“不,这个条款是不可更改的。”这样,你就知道了自己正准备与怎样的人合作,需要遵从哪些条款。

或许会出现1%的情况,那就是他们因你追求个人利益的行为而收回录用通知。这是最糟糕的情况,不是吗?事实上,这是件好事。这种拒绝录用你的行为就相当于他们在暗示:“我们很爱打官司,我们不想与你合作。”祝贺你,你避开了许多麻烦。

无论你有多少工作经验(游戏邦注:除非是刚走出校园的学生),你应当勇敢地进行雇佣合同谈判。他们向你发送录用通知书,意味着他们确实很需要你,这就是你在谈判中的筹码。你知道面试过程的成本吗?公司付出的成本比你更大。他们花了大量的时间和金钱,确认你的确是适合他们的人。他们想要你,签约失败甚至可能影响到项目进程,所以他们很有可能根据你的需要对合同做适当修改。

当你收到合同时,主动权便掌握在你手上。好好利用这个权利,最重要的是,要意识到你可以利用这个权利。我真诚希望你能够采纳我的上述看法。

游戏邦注:本文发稿于2011年10月10日,所涉时间、事件和数据均以此为准。(本文为游戏邦/gamerboom.com编译,拒绝任何不保留版权的转载,如需转载请联系:游戏邦

Contract Negotiation for Mid-Career Game Developers

DARIUS KAZEMI

Introduction

More than five years ago I wrote the first article in my Effective Networking series. I wrote it because I was just breaking in to the game industry, and I looked at my peers (students) and saw that there was a huge hole in their knowledge when it came to networking skills. These days I’m a relatively experienced working game developer. And I’ve lately noticed another conspicuous gap in knowledge: almost none of my peers seem to understand contract negotiation, specifically as it pertains to employment contracts.

This is a huge shame, as it causes many devs to get themselves into frustrating, confusing, and stressful situations down the road that could be avoided well ahead of time. I hope that this series of articles helps at least a few developers avoid these situations.

DISCLAIMER: I am not a lawyer. The stuff I’m going to talk about is not to be construed as specific legal advice. I’m mostly sticking to the general principles of contract negotiation, and what to look out for in an employment contract. What I say here applies specifically to the United States, as I know nothing about the law or contract negotiation etiquette in other countries. What I say here may screw you over. This advice is for mid-career game developers: if it’s your first job out of school, I dunno, maybe you should just sign what you’re given to get that foot in the door! (But maybe not.) And finally: if you have any specific questions about the legality of something, CONSULT A LAWYER.

The most important thing

The first thing that you have to understand about employment contracts is this: employment contracts are negotiable. So many developers don’t understand this simple fact! They think an employment contract is a sign / don’t sign type of deal.

It’s sort of understandable. Let’s say you’re looking for work: over the course of weeks or months, you submit your resume, do the phone screen, go in for the in-person interview, maybe do some salary negotiation, get the offer letter, and then get an employment contract. You might think it would be ungrateful to negotiate at this point, since they clearly like you and want you to work there. But that idea is flat-out wrong. (I’ll go into more detail as to why in a later article.)

At this point, hopefully, you’ll read your contract. (Some will sign it without reading it. These people are known as idiots.) Maybe you come across a clause that says the company owns all your “inventions.” Maybe you see something that says you can’t work in games for a year after you work for them. Maybe you don’t understand a damn thing because it’s all a bunch of jargon!

After reading the contract, many people assume that they have one decision to make: sign the contract if they like it, or turn down the job if they don’t like the contract. Thing is: the contract you are given does not have to be the contract you end up signing. A contract is simply a legally binding agreement between two parties. The key word here is agreement. The whole process of negotiation is the process of coming to an agreement between you and your prospective employer.

What to expect from the rest of this series

Topics I’m going to cover in this series include:

Why you should never be afraid to negotiate

The worst that can happen isn’t so bad

Why you should never take someone at their word (“trust us, we’d never enforce that”)

Plus a surefire way to get past that without making it seem like you don’t trust them

What to look out for in a contract, and reasonable modifications you can suggest

IP assignment

Non-compete

The specific mechanics of contract negotiation

What kind of stuff do you write in your email when you hand back a modified employment contract?

HOW do you modify the contract, mechanically speaking: what software do you use, if any?

How do you convey what was modified in such a way that you kind of look like you know what you’re doing?

How do you approach the situation with tact?

How much back and forth should you expect?

With a contract, the only limit is your imagination! (i.e., other random crap you can try adding to your contract)

A story

You’ve been interviewing with this game studio for two weeks now. Two months if you count time from your initial resume submission. They flew you out, paid for a great hotel and meals, and interrogated the hell out of you. It was a grueling, day-long process. You had to tell your current employer you had a family emergency to take care of. You couldn’t post to Twitter about the fact that you were out of town. You felt like a secret agent.

Turns out you passed muster. They like you. They offer you a job. You’ll be working on a new game that you’re super excited about, with an amazing team of people, some of whom you’ve respected for years. You’ll have a position that gives you more responsibilities, and more chance to make an impact on the final product. You’ve been looking for an opportunity like this forever.

Then you get the employment contract. It’s got some heavy language in it — some of it scary, some of it boring, some of it inscrutable. Stuff about “IP assignment” and non-competition and non-solicitation. You read through it and as best you can make out, you’re not going to be able to work on any side projects while employed there (at least not without the company owning your projects). You’re not going to be able to THINK UP any side projects while employed there — any ideas you come up with while employed belong to the company. And if you leave the company you won’t be able to work for another game studio for a year.

Well, that sucks! But it’s probably not as bad as it looks, right? They seemed like such nice people over there, even the executives. It’s the whole reason you want to work there! I mean, that clause about leaving the company — they wouldn’t REALLY just halt your career for a year after you leave, right? And you asked your hiring manager about the personal projects stuff. They assured you that nobody’s ever been busted for having side projects, as long as they’re not made on company time or resources.

It’s such a great job, and such a cool company, and they’re even offering you $25,000 more than you’re making now! It would be ungrateful to complain! I mean, you probably only barely passed that interview. If you asked them to remove stuff from the contract — stuff that probably a REALLY SMART and well-paid lawyer came up with — they might take their offer back!

You know what, this job is a once-in-a-lifetime opportunity. Best to just sign the contract; it probably won’t matter.

Fast-forward three years. You’ve shipped that awesome game. It was a hit. You’re mid way through working on the sequel now and frankly you’re fucking tired of it. You love your coworkers but if you have to have one more serious discussion about a space marine in power armor you’re going to kill someone.

You’ve got ideas for games of your own. You’ve discussed them with some friends at a different studio. You want to start your own studio with those friends and try your hand at a director-level position — this company was a great place to be a team lead, and the experience was invaluable, but there’s no room for a new director. They have all the directors they need and nobody’s going to be leaving those positions any time soon.

But there’s that contract. You haven’t looked at it in ages, but it looms over you every day now. It’s true that your company’s never stopped someone from leaving and immediately starting a new studio, but as far as you know, nobody’s ever TRIED! And who could blame them, given the contract they had to sign? Your company has some pretty high powered lawyers, and if they came after you it’d make your life miserable for a year.

What if you managed to start a studio but your current employers found out you came up with your project while working for them? It wouldn’t be that hard to put two and two together. You’ve spent years here! What if they come after you and claim ownership of your game?

You think back to that day three years ago when you signed that contract and sigh. If only you’d negotiated.

You found out after the fact that your company was absolutely hurting for someone of your skills. You were the sixth person they’d interviewed for that job and it had been a long, costly process for the company. You didn’t know it at the time but you were in a good position to bargain. You could’ve easily had them modify the IP assignment clause so that it only applied to games that directly competed with the company’s space marine stuff. You could’ve had them drop that non-compete altogether.

But you didn’t, and now you’re in a world of stress that could have been avoided with another couple days of emails three years ago.

Don’t be afraid

The moral of the story is: don’t EVER be afraid to negotiate an employment contract. Do not fool yourself into thinking it’s not going to matter. Almost everyone I know does not negotiate these contracts, and almost everyone I know has an incredibly stressful time leaving their job.

Do not believe that the because the people you’ve met during the hiring process are nice, that they’re not going to be bastards when it comes down to the stuff laid out in the contract.

Relatedly, do not fall for the classic move where the person you’re talking to assures you that the company has never sued an ex-employee over the terms of the contract. I hate this move. It’s moronic. Fortunately, like all moronic strategies, there is an ironclad response.

Hiring manager: “Oh, we’ve never sued an employee over the non-compete. People go to new studios all the time; it’s really only there in case an executive leaves with a bunch of company secrets. We would never do that to you.”

You: “I believe that you would never do that to me — you seem super great and that’s why I want to work with you. But what happens if the company gets bought by someone else? My contract passes to them, and all of a sudden it’s a brand new board of directors and legal team that is in charge of enforcing the terms of my employment contract. For all I know, they’ll be extremely litigious. [Bonus counter move up next...] Since I’m not an executive, and as you say the clause is there for executives, then I guess it doesn’t apply to me. I would really feel more comfortable working for you without that clause in my contract.”

That usually shuts them up.

Above all, do not be afraid that trying to negotiate is going to make them retract their job offer. Let’s say you ask someone to modify something in your contract, and you give a perfectly reasonable explanation. For example: “This non-compete clause means that I won’t have a career for 365 days after leaving your company, and that is unacceptable.” Well 99% of the time, if they really want that clause in there, they will simply come back and say “No, that’s non-negotiable.” Which is totally fine — it means you understand what you’re getting yourself into and what kind of people you’re dealing with.

In maybe 1% of cases, they will retract their job offer because you had the audacity to look out for your own interests. Oh no! Worst case scenario, right? Actually it’s a great thing. That job retraction is the equivalent of them saying, “We are gigantic litigious assholes and we don’t want you working with us.” Well congratulations my friend, you just dodged a fucking bullet!

No matter who you are (except maybe a student fresh out of school), you should never feel like you’re too inexperienced or replaceable to negotiate an employment contract. The fact that they made you an offer means they really, really want you — and at this point you hold a TON of power in the relationship. You know how it’s draining to go through the interview process? It’s even more draining for a company. They’ve spent a ton of time and money making absolutely sure you’re right for them. They want you, and saying “no” might even mess up their project schedules — which at this point they’re probably already shifting around to make room for you.

When you receive that contract, the ball is in your court. You have the power. Use it wisely and use it well, but above all, use it.

The rest of this employment contract negotiation series is going to cover how and when to use that power. But no matter what else I cover, this article will always be the most important one. It’s my sincere hope that you internalize what I’ve said here. (Source: Tiny Subversions part1part 2)


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