In an employment context, the term “work product” refers to anything that an employee creates for an employer or at their place of employment for job purposes. Some common examples of work products are clothing designs, food or beverage recipes, graphics or logos, and product formulas.
An employee might develop any of the work products referred to above or other work products specifically for an employer or to fulfill their job duties. In that case, the final work product belongs to their employer once the project is complete.
In most instances, an employee can figure out the ownership arrangement of a work product by reviewing their employment contract. This is because provisions regarding the ownership of work products are often included as part of employee-employer agreements if the issue is an important one for an employer.
For example, an employment contract might contain a provision that says, “All employment-related work created by the employee during the course of employment will become the property of the employer and/or company.”
It should be noted, however, that there is one situation in which people use the term “work product” in a different sense, and that is when it is used in reference to the attorney-client relationship.
In this context, the phrase means any work that is done by an attorney in the course of their representation of a client. This includes preparing for a trial or other legal proceedings, taking notes, performing legal research, discussing a case with their client, and so on.
Also, work product in an attorney-client relationship is normally protected by common law and the rules of evidence. For instance, the opposing party in a lawsuit may not view or have access to a work product if it was created in the course of the attorney’s representation of their client, e.g., for trial.
What Are Some Common Work Product Disputes?
Many employees already assume that the work they do or create for a job is owned by the person or entity that employs them. However, not every worker will necessarily have to sign an employment contract or confidentiality agreement when they are hired. The lack of a contract that addresses the issue may lead to disputes about whether the employer or the employee owns a work product or an invention.
For instance, some common work product disputes between an employee and their employer may include the following:
- Employee versus Employer: If the ownership rights to a work product are unclear, then this can cause a dispute between an employee and their employer. Aside from ownership rights, an employee may argue that the work product was created during off-hours or that they were never paid for the work product. In such cases, they may be able to recover monetary damages from their employer;
- Use and Royalties: Employment contracts that contain work product provisions normally provide instructions on details, such as what should happen in the event that a work product dispute occurs, who retains the royalty rights to a work product, who collects the proceeds if a work product is sold, and which party will have future use of the work product in question;
- Disputes between Individual Employees: A work product dispute may arise between two employees who work for the same employer. The employees may disagree about who actually made the work product or who should get credit for it. In such cases, the employees may provide proof of their creation by submitting certain evidence.
- This evidence can include work logs, computer data, sketches or drawings, and physical or electronic records;
- Work by Employees versus Independent Contractors: In most cases, an independent contractor owns the work product that they create and then gives permission to an employer to use their work through a license agreement. For instance, if an independent contractor created a work product using their own laptop, in their own residence, and without any further instructions, then they most likely own that work product.
- On the other hand, an employee could be hired by an employer or company to create a work product specifically. If so, they must follow the employer’s instructions and use the materials provided by the employer, then the employer may own the work product, not the employee;
- If there is a contract, its provisions would, hopefully, address these issues.
The laws of a particular state may have an impact on whether an employee may file a lawsuit to resolve a work product issue as well as the outcome of a case. This is because the issues involved, e.g., the interpretation of contracts, may depend on state law.
What Terms Are Used in Employment Contracts Regarding Product Disputes?
There are several provisions in an employment contract that may apply to work product disputes. Such provisions are known as “pre-invention assignment agreements.” These provisions assign ownership to the work products that an employee creates or invents during the course of their employment to their employer or company.
Pre-invention assignment agreements are not the only type of provision that may be included in an employment contract to limit work product disputes. This is because employees and their employers are generally free to negotiate the terms and conditions provided in an employment contract. Thus, each individual agreement may be different from the next.
However, most employment contracts are usually formed according to an employer’s needs. Some common examples of clauses used in employment contracts that may affect a work product dispute include:
- Waiver Provisions: Waiver provisions force an employee to disclose any inventions or products they create and give up their rights to them before being hired by an employer, as long as the employee does not already have a patent or other intellectual property right for those inventions or products.
- This provision also prevents an employee from using the defense that they developed the invention or product before they were employed by the company;
- Holdover Provisions: A holdover provision allows an employer to retain the rights to the work product or invention of an employee, even if the employee no longer works for the employer. Note that holdover provisions usually do not extend for longer than a year and, in some cases, may expire within six months;
- Assignment Provisions: As stated above, this clause is regularly used to assign ownership of an employee’s work product to an employer or company;
- Disclosure Provisions: The disclosure provision requires that an employee disclose any work product or invention they developed during the course of employment to their employer;
- Power of Attorney Provisions: This clause gives an employer or company the power to register and distribute an employee’s work product invention or creation without their consent. This means the company would be free to do things like trademark, copyright, or patent an employee’s work product without their permission.
What if There Is No Contract Regarding Work Product Ownership?
It is possible to file a claim based on an oral contract if no written agreement regarding work product ownership exists. Of course, the existence and terms of an oral contract might be more difficult to prove.
Some basic guidelines that courts generally follow in deciding work product lawsuits based on oral contracts include the following:
- Use of Company Resources: The more company resources an employee uses to create a work product, the less likely it is that the employee has ownership rights to the product. This includes physical resources as well as time.
- For example, a particular work product may have been created outside of the scope of employment and/or working hours. In that case, the employee has a stronger claim to the work product. If the work product was created during work hours and within the scope of employment, then it is more likely to belong to the employer;
- Company Marketing Materials: There are some scenarios wherein an employee might create work content for a company in exchange for having it marketed for royalties. In such instances, the employee may be considered an independent contractor. In this case, they will likely have a contract, but if not, they can show the royalties as evidence that the work product is owned by them, not the company.
- Employee Job Duties: An employee might have been specifically hired to develop or create the disputed work product. In that case, their employer will have a stronger claim of ownership over the inventions or products made by the employee.
What if I Am Involved in a Work Product Dispute?
In general, the circumstances surrounding a particular work product dispute will significantly affect the outcome of such issues. Often, the resolution of a work product dispute hinges on the terms of a person’s employment contract.
For example, assume that an employee negotiated a provision in their employment contract to maintain ownership over their work products through the period of their employment. In that case, they most likely would be able to argue that this clause protects them from having to give up their ownership rights to their employer.
On the other hand, an employee may have signed an employment contract that lacks such a provision. If so, it might be more difficult to argue that the work product rightfully belongs to them and not their employer.
Thus, the first step an employee should take when involved in a work product dispute is to review the terms of their employment contract or any other agreement they signed with their employer concerning work products.
In most instances, an employee will need to file a lawsuit in civil court in order to resolve a work product dispute. Therefore, after the employee reviews their contract and/or other work product agreements, they should consult with a local employment law attorney to confirm that they have a case. A lawyer can also provide advice on the potential benefits and risks of filing a work product lawsuit. A lawyer can also advise as to the next steps.
For example, the employee’s lawyer may recommend filing a lawsuit against their employer. If this is the case, the employee will then need to gather enough evidence to prove that they did, in fact, create the work product. They would also need to be able to demonstrate to the court that they could even recreate it if they had to by following the same steps, which, hopefully, they have documented.
Any witnesses that can attest to the fact that the employee created the work product or why it may belong to the employee and not their employer may also be helpful as evidence.
Finally, an employee should always avoid discussing their legal matters with other people unless their attorney is present and/or advises them to do so. This is especially important when it comes to legal disputes over work products because these cases tend to involve an element of secrecy or confidentiality.
Do I Need a Lawyer for Help With My Work Product Dispute?
Disputes over work products can have long-term consequences. For instance, a worker may lose their right to profit off of the product sales even though they are the ones who created it. A worker can also jeopardize their job in the process. Therefore, if you are involved in a work product dispute, you want to consult a local employment contract attorney for help.
LegalMatch.com can connect you to an experienced employment attorney who can review the facts surrounding your dispute and determine whether you have a viable case. If you do have a case, your lawyer can represent you in negotiations with your employer or in court if necessary.
