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  #41  
Old 11.06.2021, 23:07
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Re: New employer wants me to start before end of current contract

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Anyway how will they even know ....
Switzerland is a very small country, divided into smaller parts by language and, within those into even smaller sub-cultures of fields of work.

In such a small pool it is highly likely that, sooner or later, the people one meets in one job will be there, in the next context. They will turn out to be one's clients or competitors or both, they will be service-providers, speakers at conferences, as participants, teachers, supervisors, suppliers, inspectors and consultants, and sometimes as the very people who will promote or block one's own next project or opportunity for development.

There's also a certain subset of all of those here on this forum which is, after all, wholly public for anyone to read, and many do, also those who are not registered here, and some possibly pop by to see if they can find out what their employees or colleagues are up to.

In short, in such a small world, one's reputation is often likely to catch up with, if not precede one.
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  #42  
Old 11.06.2021, 23:19
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Re: New employer wants me to start before end of current contract

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Legally, yeah could be a consequence but really?
Yes.

I've enforced contractual terms and secured damages from a former employee who demonstrated a similar willingness to disregard the terms of their employment.

The damage that their poor judgement inflicted on their own reputation in the small, well connected Geneva job market ,was far greater.

I wouldn't hesitate to take the same action.
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  #43  
Old 11.06.2021, 23:23
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Re: New employer wants me to start before end of current contract

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I asked about working within notice period and whilst on garden leave and I think it’s fine.
In that case, I hope you got that permission in writing. Then you'll be fine, as long as the new employer also gives permission.
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  #44  
Old 11.06.2021, 23:29
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Re: New employer wants me to start before end of current contract

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Plan is to do absolute minimum in current job for a month while working in new job. Legally, yeah could be a consequence but really?
And you post your intention to do so in public!

I wonder how your current employer would view your plan to do an "absolute minimum" of work there, while they still pay your salary, although your efforts are being put into the new job. I wonder how your new employer would see that, knowing that they've hired the kind of employee who brings that variable attitude to his/her work. That would not bode well in any team I were leading.

This could come back to bite you, and I would not commend such choice of action.
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  #45  
Old 11.06.2021, 23:58
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Re: New employer wants me to start before end of current contract

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Legally, yeah could be a consequence but really?
Gross misconduct in both jobs = lose both jobs + no unemployment benefits for a significant period + bad reference(s)

Both companies could in principle also sue you for failure to deliver on your contract.
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  #46  
Old 13.06.2021, 21:44
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Re: New employer wants me to start before end of current contract

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Excellent approach!
The fact that today's employment contracts tend to contain clauses giving the employer IP rights indicates that your claim is false.
Your logic is flawed. There are a lot of things in an emplyoment contract which are goverenedd by law and actually don't need to be there.

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Got some reliable source to back it up?
Is the swiss code of obligations reliable enough for you?

https://www.fedlex.admin.ch/eli/cc/2...21_377/de#a332
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  #47  
Old 13.06.2021, 21:47
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Re: New employer wants me to start before end of current contract

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AFAIK that is limited to work hours (which may be difficult to identify with WFH). In my (admittedly vvery limited) experience, the job contract will broaden the scope to non-work hours.
It is not!
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  #48  
Old 13.06.2021, 21:51
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Re: New employer wants me to start before end of current contract

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Oh dear do we have another patent attorney on here? (Guessing by the content of your Post and the "EP" Portion of your usernane).

I agree that's potentially a problem - but only if they are in a profession where there is a realistic chance of creating IP (and even then it would be essentially impossible for the former employer to know it was created during the crossover period and even then (if Swiss law is the same as British) they'd have to demonstrate it was made during the course of the employees normal duties - very hard if they are no longer attending work. Real world the risk is low imho.
It is not
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  #49  
Old 13.06.2021, 22:47
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Re: New employer wants me to start before end of current contract

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It is not
So if a migros cashier (obviously not employed to invent) invents something in their shed at the weekend they have an obligation to assign it to their employer?

If yes - that begs the question: What happens if that person also worked part time in another job (where there was similarly no expectation of invention)?

Im not a Swiss patent attorney (but I am UK and EP qualified) but Article 332 looks like there would be no obligation to assign, and seems almost identical to the British law at first glance (despite your groan!). I could be wrong - if so please explain

Art 332:1
Inventions and designs that the employee makes in the course of his official work and in the fulfillment of his contractual obligations, or that he contributes to the creation, belong to the employer regardless of their protectability.

Last edited by HickvonFrick; 13.06.2021 at 23:27.
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  #50  
Old 13.06.2021, 22:49
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Re: New employer wants me to start before end of current contract

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Switzerland is a very small country, divided into smaller parts by language and, within those into even smaller sub-cultures of fields of work.

In such a small pool it is highly likely that, sooner or later, the people one meets in one job will be there, in the next context. They will turn out to be one's clients or competitors or both, they will be service-providers, speakers at conferences, as participants, teachers, supervisors, suppliers, inspectors and consultants, and sometimes as the very people who will promote or block one's own next project or opportunity for development.

There's also a certain subset of all of those here on this forum which is, after all, wholly public for anyone to read, and many do, also those who are not registered here, and some possibly pop by to see if they can find out what their employees or colleagues are up to.

In short, in such a small world, one's reputation is often likely to catch up with, if not precede one.
I got told this when I quit in 2004 under not the best of circumstances.

I had no problem finding work, In fact, given my former employer, it may have helped as they had a reputation of being tossers.
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  #51  
Old 14.06.2021, 12:19
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Re: New employer wants me to start before end of current contract

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So if a migros cashier (obviously not employed to invent) invents something in their shed at the weekend they have an obligation to assign it to their employer?

If yes - that begs the question: What happens if that person also worked part time in another job (where there was similarly no expectation of invention)?
Pretty much this.
Moreover, what if that cashier has two part-time contracts for 50%, neither employer knows of the other, and there's an invention made during the weekend that's unrelated to the job? Which employer is supposed to have ownership rights?

@EPMike, the versions from february and january have been translated to English. Open either PDF version and explain what, in your opinion, the clause "in the course of his work for the employer" means. Does the time spent sleeping at home constitute "work for the employer"? Or the time spent dressing the children and making breakfast for them?
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  #52  
Old 14.06.2021, 13:06
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Re: New employer wants me to start before end of current contract

Maybe this can contribute to the discussion. It's not law, but comes from Syndicom worker's union and is from 2020:

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in Switzerland, only the IP rights to inventions and computer programs developed during the employment relationship in fulfilment of contractual obligations belong to the employer by law. Occasional inventions are also regulated by law [...] the law does not regulate the IP rights to inventions and computer programs created prior to or during the employment relationship outside of contractual obligations or during leisure time
https://syndicom.ch/fileadmin/user_u..._IP_Rechte.pdf
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  #53  
Old 14.06.2021, 14:01
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Re: New employer wants me to start before end of current contract

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Maybe this can contribute to the discussion. It's not law, but comes from Syndicom worker's union and is from 2020:

https://syndicom.ch/fileadmin/user_u..._IP_Rechte.pdf
This is also my understanding.

But remember that IP is not just the specific thing you are working on, but also closely related items that use it (and may compete with it).

So you can't expect to do stuff in your spare time in the same primary area as your employer and then claim there is an artificial barrier between the two.

But if you create something significantly different it is yours, even if it uses the same basic skills.

E.g.
You work as a financial algorithm developer, you won't convince a court that a different financial algorithm developed in your own time is your IP

But if you developed a game or a dating app, or maybe even business accounting software, it would be your IP.
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  #54  
Old 14.06.2021, 14:41
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Re: New employer wants me to start before end of current contract

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So if a migros cashier (obviously not employed to invent) invents something in their shed at the weekend they have an obligation to assign it to their employer?

If yes - that begs the question: What happens if that person also worked part time in another job (where there was similarly no expectation of invention)?

Im not a Swiss patent attorney (but I am UK and EP qualified) but Article 332 looks like there would be no obligation to assign, and seems almost identical to the British law at first glance (despite your groan!). I could be wrong - if so please explain

Art 332:1
Inventions and designs that the employee makes in the course of his official work and in the fulfillment of his contractual obligations, or that he contributes to the creation, belong to the employer regardless of their protectability.
Basically it is not about workign time vs not working time. You can be at home, or jogging and having an idea that is work-related.

My experience is that as long as your invention has anything to do with the j ob you have been hired to do, you will have a hard time in courts.

As you wrote, the migros cashier is obviously not hired to invent, which makes it simpler. The OP however, talking about company shares, is probably expected to be creative in his line of work.

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Pretty much this.
Moreover, what if that cashier has two part-time contracts for 50%, neither employer knows of the other, and there's an invention made during the weekend that's unrelated to the job? Which employer is supposed to have ownership rights?

@EPMike, the versions from february and january have been translated to English. Open either PDF version and explain what, in your opinion, the clause "in the course of his work for the employer" means. Does the time spent sleeping at home constitute "work for the employer"? Or the time spent dressing the children and making breakfast for them?
See above it does not come down to the time of invention. "In fulfilment of his duties is interpreted very broadly.

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This is also my understanding.

But remember that IP is not just the specific thing you are working on, but also closely related items that use it (and may compete with it).

So you can't expect to do stuff in your spare time in the same primary area as your employer and then claim there is an artificial barrier between the two.

But if you create something significantly different it is yours, even if it uses the same basic skills.
Exactly.


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E.g.
You work as a financial algorithm developer, you won't convince a court that a different financial algorithm developed in your own time is your IP

But if you developed a game or a dating app, or maybe even business accounting software, it would be your IP.
This is a grey area.
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  #55  
Old 14.06.2021, 14:51
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Re: New employer wants me to start before end of current contract

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Oh dear do we have another patent attorney on here?
This is what the groan was for....
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  #56  
Old 14.06.2021, 14:52
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Re: New employer wants me to start before end of current contract

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Basically it is not about workign time vs not working time. You can be at home, or jogging and having an idea that is work-related.

My experience is that as long as your invention has anything to do with the j ob you have been hired to do, you will have a hard time in courts.

As you wrote, the migros cashier is obviously not hired to invent, which makes it simpler. The OP however, talking about company shares, is probably expected to be creative in his line of work.



See above it does not come down to the time of invention. "In fulfilment of his duties is interpreted very broadly.


Exactly.




This is a grey area.
Totally agreed. Perhaps I misread your original post. Not to do with whether you are at home or if the invention was made out of working hours (except perhaps in very marginal cases), but to do with whether there is an expectation that you will come up with an invention as part of your job, and if so, whether the invention is in the field of your job.
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  #57  
Old 14.06.2021, 14:52
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Re: New employer wants me to start before end of current contract

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Ask your current company. Had the same and we agreed that I could start earlier with the new company.
I also think this is the best approach
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  #58  
Old 14.06.2021, 14:56
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Re: New employer wants me to start before end of current contract

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This is what the groan was for....
Bit harsh , bit of British humour joking about my own profession!
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Old 14.06.2021, 19:08
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Re: New employer wants me to start before end of current contract

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Bit harsh , bit of British humour joking about my own profession!
If I knew then that you are one, I would have hopefully got the cynicism
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  #60  
Old 14.06.2021, 19:49
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Re: New employer wants me to start before end of current contract

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Exactly, try to keep the shares, old employer still saves money. You cannot really ask for anything from the new company except for one month worth of salary.

If I were you, I would take time off, collect your shares, and start 1 Sept as per contract.
You can ask your new employer to buyout the share value. You'll need the paperwork and they may or may not agree.... it happens a lot at senior levels so ask, if you're still considering pursuing starting early.
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