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I recently resigned from a software developer "position". The biggest reason I left is it seems we both don't have a leg stand on. There was never anything signed by me or the employer showing that I worked for the company and the stuff I was doing was for a company he never incorporated. Another reason for me leaving is I was never paid for the 5+ months worth of work I did.

Since leaving, the guy has been trying to persuade me into doing more work and now is wanting me to hand over the source code. He had another person conference call me to make me think it was someone else when it was him on the other end. I have told him I'm not handing anything over until I get paid. He ordered me to go into his office with the source code and wasn't clear on if he would pay me. I also told him that he can pay me electronically.

I'm wondering what my options are here. Should I go to the office? What would happen if I don't give him anything? How can I cut him off and have him leave me alone? What repercussions could I encounter? For reference, I'm located in Alberta, Canada.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Jane S Nov 6 '18 at 22:19
  • Make sure you don't have sensitive data stored in your source code, such as passwords, e-mail etc. – Axel2D Nov 7 '18 at 10:37
  • 5+ months without pay!? – BittermanAndy Nov 7 '18 at 17:52
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You do nothing. You don't enter into a dialogue or anything else until you have received payment.

Until then just ignore him. If he needs the code he'll pay you when he realises that's his only option. If not then you haven't lost anything, he wasn't going to pay you anyway.

He's well aware he owes you, he has all the information needed to make a payment. He's just trying to avoid it.

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    @Fattie: I assume you are an employment and copyright lawyer working in Alberta. Otherwise, you don't know who owns the copyright. – David Thornley Nov 6 '18 at 17:31
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    There is zero need to worry about court cases or copyright at this point. By not saying anything you don't acknowledge there is an issue or potentially leave yourself open. I've had more than one company start with demands and then send lawyers to give me formal letters instead of just paying me, I don't even bother reading them. Just sit tight until someone pays me.... – Kilisi Nov 7 '18 at 8:37
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You need a lawyer.

In many jurisdictions, you do not have to have signed anything for an employment contract to be considered to be in effect - you simply need to have accepted that employment is happening. I am not a lawyer, I am not a Canadian lawyer, and I am not an employment lawyer in Alberta so I cannot give you the legal advice you really require.

If an employment contract was in place, then the other party may have ownership claims on the source code you are withholding, which means there are two separate but intertwined issues here - lack of remuneration for work done, and ownership of the work produced.

The lack of remuneration may have a significant impact on your situation legally (especially in the case of copyright ownership on the code), but it will take a lawyer and even perhaps an employment tribunal ruling or a judge to give any closure.

Do not GPL the code.

Do not release the code to anyone else.

Do not delete the code.

Do not distribute the code under any terms.

Any of these things have the potential to get you into a lot of trouble, especially if the other party has better legal assistance than you do.

Seek legal advice as to the legal ownership of the source codes copyright from a lawyer who is either well versed in employment law or is well versed in copyright law - preferably someone who has experts on their team to advise them on both aspects, as this can get very difficult.

In short, you need proper legal advice on both aspects of your problem, not random answers from people on the internet.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Snow Nov 7 '18 at 7:09
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I will echo – strongly – the sentiment that you need to engage an attorney, if only for an hour or two.

Your troubles began when you never exchanged any paperwork. You performed as an employee in anticipation(!) of being paid, but – did you ever receive money, or any other "valuable compensation?" Both sides are where they never should have allowed themselves to be – but, here you are.

Well, this is what attorneys are for, and now's as good a time as any to discover for yourself how valuable(!) these people can be. They will be able to assess your situation in the eyes of the prevailing law, recommend appropriate action (as none of us here could ever do), and perhaps, "write a letter or two, on letterhead." An attorney is a legal professional who can speak from authority.

P.S. I first encountered "our attorney" when settling an estate. Today, I wouldn't think of doing anything without: "Let me first Ask Tom™ what he thinks ..." Tom charges me (fairly). I pay him. Willingly.

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Kilisi’s answer is basically right.

But if the person has older versions of the software that are not completely paid for, then you also inform them that until you have been paid completely, all copyrights in the software are yours and only yours, so using the software or creating derivative works is copyright infringement, in the USA with a statutory fine of up to $150,000.

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    But OP said that they're in Alberta, CA. It seems implicit that the "employer" is also in Canada, not the USA. Why, then, are you referring to US Copyright Law? Do you know US Copyright Law to also apply in Canada? – code_dredd Nov 6 '18 at 18:53
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    "all copyrights in the software are yours" - You can't possibly know if that is the case. – Donald Nov 6 '18 at 21:16
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IANAL.

1) If you never had a contract, then there is nothing legally binding to show that he owns the code you created while you were his employee. Therefore (I believe) you should by default own the rights to your contributions. Depending on how strongly you feel, you could (after getting a legal opinion) potentially serve a C&D-type order to your former "employer" to tell them not to use the code you created at all until you are paid.

2) You have left the company. Unless you signed something before you left to the contrary, you have no further responsibilities to help them in any way, shape, or form. You do not have to go to the office, you do not have to give them any code, you do not have to even accept their phone calls when they call you. So do what you feel is right.

If you want my opinion (this is purely my opinion), I think you should tell them to pay you for your 5+ months of work or else to go f*** themselves (I would actually use that exact language in this particular situation), and to end the conversation there and see what happens. If they pay you, then you should give them what they ask for, and if they still want your help afterwards, you should write up a new contract and have them sign it, stating how much you are to be paid and when; if they refuse to sign the contract then, once again, tell them to go f*** themselves (again, using that exact language). Only when you have a legally-binding contract should you even consider writing even a single line of code for this company again.

In the meantime, I would seriously consider hosting this code you wrote for them on a private GitHub account to use as part of your personal portfolio to send to future potential employers in a future job hunt. Be careful not to post the code publicly, because then your former "employer" could just copy it for free. Until papers are signed to the contrary, you own the code and you can do with it as you like (I believe, although you may want legal counsel before doing this just in case), so there's no point in letting hard work go to waste.

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    Formal employment contracts are not normally used in the US; the fact that I'm on my employer's payroll, get pay and benefits, and show up and work is taken as constituting a contract. I don't know about Canada. The lack of formal contract may indeed be the deciding point, but I don't know that for sure. – David Thornley Nov 6 '18 at 17:35
  • @DavidThornley As a Canadian myself, I have always been given an employment contract when I have been employed. Not having one seems suspicious. – Ertai87 Nov 6 '18 at 17:39
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    @Ertai87 Acceptance of an employee handbook generally constitutes an employee contract, in regards to many employers/ees in the US. And in cases where there is a separate contract, its mostly just and acceptance of employment based on the terms outlined in the handbook. As least where I live. – user41891 Nov 6 '18 at 17:56
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DO NOT go to the office and DO NOT send him anything.

Create shop on Wix with digital product item - zipped source code

Set price for the item as total he owes you plus wix and transaction fees.

Remove every other copy of the source code from any other media you have and tell him that.

5+ months of unpaid work sound like very expensive lesson in not working for friends, but we all had them in one way or the other

Without contract or source code deployed you have no liability.

GPL is a great idea, as well as disclamer that product sold "as is" and buyer assumes all liability in product notes

Explanation:

  1. OP mentioned that there is NO contract and there is NO company that he did work for.

  2. As Canadian citizen OP has the right to sell his work product, and make no mistake, the source code is HIS work product, on ANY platform as long as he adds it to his yearly earnings in April to pay taxes from.

  3. No one else have the right to his work product unless he gives up that right in employment or consulting agreement AND compensated on time and fully for his time

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    This is a rather confusing answer. What is "Wix"? Why should OP put "create shop"? And why do you thing they even have a right to do this? Frankly, this sounds like bad advice. – sleske Nov 6 '18 at 7:20
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    No. No no no. This has the ability to get OP into SO much legal trouble. A contract might not be required for OP to have been considered an 'employee'. While OP is owed 5 months of pay, the employer may be legally considered to be the copyright holder. In addition, if you host that source code through Wix/Squarespace/et al, you give them the irrevocable right to recreate, redistribute and modify the source code. Effectively you've given it to them for free, and that alone is enough to screw over OP in the legal sense. – 520 Nov 6 '18 at 10:14
  • Explanation, OP mentioned that there is NO contract and there is NO company that he did work for. – Strader Nov 6 '18 at 15:30
  • @Strader - As been pointed out. If he was a developer of a company, most of the time, a contract does not exist. If he was a contractor for that company, then a contract should have existed, the fact there isn't one indicates he might have been considered an employee of the company. Depending on the facts, ownership of the code can be vastly different at this stage of the game. – Donald Nov 6 '18 at 21:21
  • @Ramhound if not documented, employer - employee relationship determination is non existent. If he didnt received any compensation, on paper he have no relation to that "company". "Friendship" is not the reason to provide anything to anyone. Ownership and liability of the code is in the hands of the creator unless stated otherwise in signed agreement. – Strader Nov 6 '18 at 21:50
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Your friend isn't going to pay you. You wouldn't be asking here if you'd get the money.

Should I go to the office? What would happen if I don't give him anything? How can I cut him off and have him leave me alone?

You shouldn't visit his office. Please zip your code, and email it to your friend. You're not going to get compensated for the code anyway, why not just hand it out and "cut" him off? You lose absolutely nothing. You may also want to post it publicity on Github.

Make it clear anything more than that will no longer be your responsibility. Don't do any more programming. Friendship over.

EDIT: A user complained about liability. Make your code GPL. Copy a GPL license file into your source bundle. Problem solved.

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    Don't send code. You get nothing, and you expose yourself to liability if any problems come from misuse. – Wesley Long Nov 6 '18 at 4:44
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    I hadn't considered that. Very elegant solution. Respect! – Wesley Long Nov 6 '18 at 4:51
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    @SmallChess its better to delete all the code rather to give it to fin freeloader that strings person along for half a year – Strader Nov 6 '18 at 5:19
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    @SmallChess this is where you wrong. i.e. would you give me your car? it is also product of your work, directly or indirectly – Strader Nov 6 '18 at 5:30
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    @SmallChess no, the GPL is not the answer, as it doesnt resolve any legal questions surrounding ownership in this case, especially if the facts differ from what we are being told. Despite not being paid, the codes ownership is a difficult one, especially if the other party can show that an agreement was in effect and that the OP was an employee (albeit one being screwed), then the source code is already legally the property of the other party and withholding it or indeed releasing it under the GPL can get the OP into some very very serious water. The OP needs a lawyer, not the Workplace SE. – Moo Nov 6 '18 at 6:13

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