Apparently one RideShare Pro video has officially turned into a trilogy.
I didn’t set out to write three articles about one video. But that’s what happens when somebody takes a subject as complicated as converting independent rideshare drivers into W-2 employees and boils it down to something resembling:
You’ll get some benefits. You’ll get paid differently. Don’t be afraid of being an employee.
Part One became: What exactly does W-2 fix?
Part Two became: What are you going to expect from me once I’m your employee?
And now we’re at Part Three:
What am I going to have to sign, and what are you going to claim belongs to you because I’m your employee?
Because this is where things get considerably more interesting.
Show Me the Contract
Some people apparently think becoming a W-2 employee means filling out a W-4, setting up direct deposit and going to work.
Anyone who has spent enough time around larger corporations knows there’s often another pile of paperwork waiting for you.
Confidentiality policies.
Social-media policies.
Outside-employment policies.
Conflict-of-interest agreements.
Proprietary-information agreements.
Work-product provisions.
Invention-assignment agreements.
And sometimes language written broadly enough that you really ought to understand what you are signing before you create something valuable.
I’ve worked jobs where these kinds of agreements and policies existed.
You don’t have to be designing nuclear reactors.
You can be working something like fraud investigations, security or another corporate function and still be subject to rules concerning information, documents, outside work and things produced as part of your employment.
Massachusetts law itself specifically recognizes invention-assignment agreements as a separate category of employment-related agreement.
That doesn’t mean every employee invention automatically belongs to an employer.
It does mean this is a real category of contract.
Which brings me back to my recurring answer throughout this entire series:
Show me what I’m signing.
Because Some of Us Actually Create Things
This isn’t hypothetical for rideshare drivers.
There are drivers running YouTube channels.
Drivers writing articles.
Drivers building websites.
Drivers creating spreadsheets and software.
Drivers developing training material.
Drivers designing camera systems, mounts, organizers and other equipment.
Drivers creating safety procedures.
Drivers developing methods for analyzing markets and positioning themselves.
Some of those things won’t ever be worth much.
Some might.
And that’s where the relationship between independent contractor and employee starts to matter.
I design things.
If I design a better camera mount for my car today, prototype it, manufacture it and sell it, I start from the position that I’m developing something for myself.
Now imagine I’m a W-2 employee and I’ve signed an employment agreement containing language about inventions, improvements or work product related to the company’s business.
Maybe my design still belongs completely to me.
Great.
Put that in writing.
Because the worst possible time to discover that we interpret the contract differently is after somebody realizes the thing I created is worth millions of dollars.
Percy Spencer and the Microwave
If you think employee-created intellectual property is some obscure concern, here’s a name worth remembering:
Percy Spencer.
Spencer worked for Raytheon and was involved in microwave and radar technology. His experiments helped lead to the development of the microwave oven.
His name appears on patents involving microwave-oven technology.
But look at the assignee.
Raytheon Manufacturing Company.
One of Spencer’s patents from 1947 explicitly describes him as the inventor while assigning the invention to Raytheon.
That’s an important distinction.
Inventor and owner don’t necessarily mean the same thing.
And I’m not suggesting Percy Spencer was some forgotten employee whose life was destroyed by Raytheon. He had an extremely successful career.
That’s not the point.
The point is that an employee can invent something extraordinarily valuable while working for a corporation and the corporation can own the intellectual-property rights associated with that work.
Now imagine we’re talking about some rideshare driver in 2030 who develops a piece of technology nobody thought of before.
Maybe it’s related to passenger safety.
Maybe it’s a camera system.
Maybe it’s dispatch software.
Maybe it’s some vehicle accessory.
Maybe it’s something none of us can imagine today.
It suddenly becomes valuable.
The first question isn’t merely:
Who invented it?
The question becomes:
Who owns it?
And that is exactly the question I want answered before I sign the employment agreement.
Then There’s Robert Kearns
And if Percy Spencer demonstrates one side of the intellectual-property problem, Robert Kearns demonstrates the other.
Kearns was the inventor associated with the intermittent windshield wiper.
He patented his technology.
So you’d think that would solve the ownership problem.
He owned patents.
Great.
Except having a patent and being able to enforce a patent are two very different things.
Kearns eventually sued Ford over infringement.
The case began in 1978 and became an extraordinarily long legal fight. Ford ultimately paid him $10.2 million to resolve the dispute.
Then came Chrysler.
A jury found Chrysler had infringed Kearns’s patents, and an award of more than $18 million ultimately survived Chrysler’s challenge.
That sounds like a success story until you start looking at what it took to get there.
Years of litigation.
Lawyers.
Court filings.
Appeals.
Expenses.
According to reporting at the time, Kearns said that millions from his Ford recovery went toward attorneys and legal expenses.
That’s the other half of this conversation.
Suppose I genuinely own something.
Suppose the company genuinely doesn’t.
And suppose their attorneys still believe they have an argument.
People sometimes respond to that with:
“Well, then you sue them.”
Okay.
With what money?
There’s a considerable difference between being legally correct and being financially capable of proving you’re legally correct against a multibillion-dollar corporation.
That’s not saying the corporation automatically wins.
Robert Kearns demonstrated quite clearly that an individual can win.
But look at what he had to go through to do it.
The Lawyer Doesn’t Have to Be Evil
This is where people sometimes turn the discussion into something it isn’t.
I’m not saying an Uber executive is going to sit in some dark office saying:
“Find me Christopher’s camera mount.”
That’s cartoon-villain stuff.
It doesn’t need to happen that way.
Imagine something I create becomes worth $10 million.
Somebody in Legal asks:
When was it developed?
Was he an employee at the time?
Was it created because of his work?
Does it relate to the company’s business?
Did he use company information?
What does his employment agreement say?
Is there an invention-assignment clause?
Is there a work-product provision?
Do we have a claim?
That’s exactly what corporate lawyers are supposed to ask.
Their job is to protect the corporation.
Which means my job is to understand the agreement before I sign it.
What About the Content Creators?
And rideshare has another complication that a lot of traditional jobs don’t.
There are thousands of drivers producing content about this industry.
Now make them employees.
What happens to their channels?
Can they continue monetizing videos about the company?
Can they criticize company policies?
Can they show screenshots from the driver application?
Can they produce driver training?
Can they sell a course?
Can they write books?
Can they publish operating strategies?
What counts as proprietary information?
What does the social-media policy say?
Maybe the answer is that they can continue doing everything they’re doing now.
Good.
Put it in writing.
Because telling somebody verbally that everything will probably be fine is considerably different from the document they’ll actually be required to sign.
And Then There Are the Cameras
This one matters directly to me.
I have security cameras in my vehicle.
They’re mine.
I bought them.
I installed them.
I maintain them.
I retain the footage.
If something happens during a trip and video becomes relevant, I can use that footage as evidence.
Now change the relationship.
I’m an employee.
Suppose recording becomes part of the company’s required safety program.
Now what?
Does company policy specify what camera I use?
Does it specify retention time?
Does it require me to preserve footage during an investigation?
Can the company order me to turn over everything recorded during a certain period?
Can it require the original recording?
Can it prevent me from keeping a copy?
What happens if company equipment recorded it?
And eventually we arrive at a question that sounds simple until lawyers start answering it:
Whose footage is it?
Maybe it’s still entirely mine.
Maybe the company only receives a copy when required.
Maybe it becomes a business record subject to company policy.
Maybe different rules apply depending upon who supplied the equipment and why the recording was made.
I don’t know.
That’s exactly why I want to see the policy.
Cherry Garcia, Weird Al and Why Representatives Matter
There are plenty of famous examples where attorneys, managers, record companies and other representatives become involved in disputes that seem ridiculous to everyone standing outside of them.
That’s because the individual involved may look at something and say:
“I don’t really care.”
Their representative looks at it and sees licensing.
Ownership.
Precedent.
Revenue.
Future rights.
Liability.
That’s their job.
And that’s another reason I don’t accept the argument:
“Come on. Uber would never bother with your little invention.”
Probably not if it’s worth $40.
What if it’s worth $40 million?
The value of an argument has an amazing tendency to change when enough zeros get added to the end.
This Is Not an Argument That W-2 Is Automatically Bad
That’s important.
I’m not saying every employment contract is terrible.
I’m not saying employees don’t create businesses of their own.
I’m not saying employers own everything an employee thinks about.
I’m not saying an invention-assignment clause automatically applies to everything somebody builds in their garage.
Real intellectual-property disputes depend on the actual facts, the actual agreement and the applicable law.
That’s precisely why I’m asking for the agreement.
Because throughout this entire W-2 argument, people keep telling drivers what they supposedly gain.
Fine.
Now show us the rest.
Show me the confidentiality agreement.
Show me the social-media policy.
Show me the outside-business rules.
Show me the work-product provisions.
Show me the invention-assignment agreement.
Show me what happens to material created before employment.
Show me what happens to something created completely on my own time.
Show me what happens to something designed specifically to make my work easier.
Show me what happens to my videos.
Show me what happens to my security footage.
And show me what dispute process applies if the company and I disagree about any of it.
Then we can have the conversation.
One Video. Three Articles.
So somehow we made it here.
One video.
Three articles.
Part One:
What exactly does W-2 fix?
Part Two:
What exactly are you going to expect from me as your employee?
And Part Three:
What exactly am I agreeing belongs to you?
That’s why I keep coming back to the same basic principle.
Don’t tell me that becoming a W-2 employee is automatically a better deal.
Don’t tell me it’s automatically a worse deal either.
Show me the deal.
Because until I know what I’m getting paid, what you’re requiring me to do, what independence I’m giving up, and what happens to the things I create—
you cannot tell me this is a better deal until you can show me the deal.