Why do you believe that? There is specific wording that is customary to use in an employment contract in at least England and Wales (along the lines of "work done in the course of your employment") if that sort of agreement is intended. It would typically cover work done on employer time, using the employer's resources, or in a field related to working for the employer, and you have to be careful about how broadly the latter can be interpreted in the context of the rest of the contract.
It is also sadly not unusual for employers to seek IP rights to all creative work done by a salaried employee during their term of employment as an explicit provision of the employment contract. Most of us here might consider that abusive but it might remove ambiguity and put the employer on safer ground legally in the event of a later dispute, and lawyers gonna lawyer.
I have argued before that an employee should reject that kind of excessively broad term and if working in a creative industry like software development they should seriously consider whether they really want to work for that employer if the employer is unwilling to change to the more customary contractual agreement when it is challenged. But a lot of people just sign contracts without reading them and unfortunately OP may be in trouble here if that is what they did.
If the employment contract contains no IP clauses that make the agreement explicit then maybe the course of employment rule would be the default but this would be very unlikely for anyone working in a creative industry and OP's description suggests there is specific wording being cited in this case.
I am not a lawyer. The understanding above does come from discussing this issue with real lawyers in England more than once, but not since a few years ago. As always, get your legal advice from a real lawyer if it matters and not from some random HN comment.
>Most of us here might consider that abusive but it might remove ambiguity and put the employer on safer ground legally in the event of a later dispute, and lawyers gonna lawyer.
There's no "but" here. It's abusive. It's reflective of the poor negotiating position employees often have with their employers. This is why the clause usually goes away once you're in demand.
Lawyers make a convenient scapegoat to hide behind for all sorts of bullshit (second only to "it's standard, it's standard!") but they are a service and they do as they are instructed. It's naive to think otherwise.
This sounds lile really greay areas though. Can an employer claim the work of something done outside of work (as in paid) hours?
If the employer didn't retribute this time in the first place, can it be considered as being in the "course of the employment"?
This seems that if this kind of super generic statement will always go in the way of the employer, it would be a giant loophole to go any regulation on working hours.
In this specific case though we don't really know the details and maybe some of the work was done during working hours.
There might also be a clause in a salaried employee's contract that specifically requires them to notify the employer of any other work they are doing and get permission, precisely because otherwise the employer could end up in trouble under working time rules through no fault of their own.
As I understand it, this area can get very tricky because you have several general positions in law here that might be in conflict. For example, normally restraint of trade is not allowed, but there is also an implicit condition in any employment contract that the employee will properly serve their employer and that might include not doing other things that would interfere with their responsibilities as an employee. Then there is the whole question of whether work can be done off the clock for a salaried employee given there are limits on working hours and minimum wage requirements (though the latter probably won't be a relevant factor for anyone writing software). There have been related questions about people who are on call and they can get messy so it is not hard to imagine a case about IP rights getting messy with similar arguments being made by both sides.
Again, what OP needs here is a real employment lawyer. Without seeing the contract and other relevant information the most we can do is discuss the general issues, and even then and when this information all came from real lawyers, I am still cautious because my knowledge might be out of date or there might be other relevant factors we didn't discuss.
It's definitely something really complex. My contract does have a clause requiring me to notify them about side activities.
It's a small company and, from what I gathered when I discussed the contract with the founder back then, a lawyer advised him to add this clause to protect the company indeed.
My advise to any company that is thinking to do the same thing that this one did to this developer, if you're interested by the open source projects of one of your employee, sponsor it, give time to your employee to contribute in his/her working hours for example. You'll have a much better outcome.
It is also sadly not unusual for employers to seek IP rights to all creative work done by a salaried employee during their term of employment as an explicit provision of the employment contract. Most of us here might consider that abusive but it might remove ambiguity and put the employer on safer ground legally in the event of a later dispute, and lawyers gonna lawyer.
I have argued before that an employee should reject that kind of excessively broad term and if working in a creative industry like software development they should seriously consider whether they really want to work for that employer if the employer is unwilling to change to the more customary contractual agreement when it is challenged. But a lot of people just sign contracts without reading them and unfortunately OP may be in trouble here if that is what they did.
If the employment contract contains no IP clauses that make the agreement explicit then maybe the course of employment rule would be the default but this would be very unlikely for anyone working in a creative industry and OP's description suggests there is specific wording being cited in this case.
I am not a lawyer. The understanding above does come from discussing this issue with real lawyers in England more than once, but not since a few years ago. As always, get your legal advice from a real lawyer if it matters and not from some random HN comment.