Don't Let a Vaguely Defined Employment Relationship or Weak IP Assignment Clause Lead to Litigation – by Martensen IP - WRCB-TV

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A fact pattern we see all too often is a former employee claiming an ownership interest in or over software or intellectual property (IP) developed by or for a former employer. Typically, this occurs with the former...

A fact pattern we see all too often is a former employee claiming an ownership interest in or over software or intellectual property (IP) developed by or for a former employer. Typically, this occurs with the former employee attempting to exploit a real or perceived ambiguity in his or her employment relationship with the employer—i.e., ambiguity regarding the former employee’s status as either an employee or an independent contractor.

Alternatively, or in addition, the former employee attempts to exploit a lack of or a perceived weakness in an IP assignment clause in his or her employment contract. Fortunately, there are a couple of relatively easy, common sense “best practices” that can help employers reduce their risks in this area.

Whether an employee, as a legal matter, is an “employee” or an “independent contractor” turns on a number of factors:

• The level of skill required to do the work. (The more skill required, the more likely the worker is an independent contractor rather than an employee.)
• The source of the instrumentalities and tools used to do the work. (If the worker is the source, they are more likely an independent contractor than an employee.)
• The location of the work. (If the work is done on the hiring...

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