Employment before incorporation

質問

Hi,

We're starting a tech company, but haven't incorporated yet. (Planning to be a Delware-C Corp and operating in New York) One of our friends is planning on joining us as an unpaid intern in a week for a few months while he's between jobs to learn more about tech.

We want an agreement with him to make it clear that whatever he works on belongs to the company, he has no claim to ownership of it and should have no expectation of pay (though we plan on potentially helping him with accommodations and food). How can we do this without the company being incorporated yet?

Thanks!
Joel

or

回答: 1 public & 0 非公開

25da12c4d3
弁理士

Questions off the top: (i) why a DE c-corp?' and (ii) why wait "a few months" to incorporate?

If you are not incorporated, there is no "company" beyond your de facto partnership, that partnership and its partners' rights and obligation, in the absence of a partnership agreement, being governed by your state's partnership act.

You can have an independent contractor or work-for-hire type agreement in place between the partnership and this "intern," but such an agreement (and the IP assignment provision you'd like to include therein) will need to be supported by some form of consideration. Further, even if you do have him sign on as an IC, your treatment of his internship will need to be qualified by state employment laws, e.g., you can't treat him like an employee, not pay him, not pay certain taxes / overtime, etc. and expect to own what he creates AND not be begging for a wage dispute. Doing the foregoing as a partnership - where the partners may be personally liable for the business' acts and each others' - is asking for even more trouble.

Your question and tacit proposal underscore your need to speak with a local IP attorney in private.

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