This both made me laugh and made me mad. Corey Doctorow over at Boingboing relates how he was contacted by a new online service to write a letter of recommendation for a former student applying to graduate school. Using a web-based interface the same letter could be submitted to multiple universities. Good idea. Like a lot of professors I have to write a lot of these and making it easier is good for me and good for students. The catch was that this one came with an end user license agreement (EULA) requiring the submitter (who is doing everyone a favor, including the web-based application service) to agree that by submitting the form you waive your own rights:
In no event will ApplyYourself or other third parties mentioned at this site be liable for any damages whatsoever (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of this site, any web sites linked to this site, or the materials or information contained at any or all such sites. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusion may not apply to you.
The part I like, though, is Doctorow's response, which I henceforth will adopt in similar circumstances:
READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
While the concept behind this -- that just by reading the email the other guy waive's legitimate rights -- is pretty stupid and would unlikely hold up in court, it is no less stupid than the equally preposterous EULA's that come with just about everything on the web these days.
Of course the recommendation service wasn't buying it, responding in an email that they wouldn't be able to release him from the terms and conditions of the EULA. The EULA, they said, was to protect him as much as themselves. Here's Doctorow's response:
"No, you don't understand -- you've already released me, just by reading my email! And that's also for your protection as well as mine, OK?"
Yes, it is OK. So that settles it.
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Cute story :-) I always tell my kids that just because a company has a "policy" of X, or as in the instance you describe you "agree" to something by submitting the form, does not mean it has a snowballs chance in hell of surviving challenge in a civil suit. If the 'policy' or 'agreement' is not congruent with existing statutes and /or case law it is not worth diddly. 'Just cause they say it doesn't make it so.
Just for the record, I think that the "anti-EULA" comes from Reasonable Agreement, which seems to be down right now. Here's a Boing Boing article about it.
Not all the on-line services are that obnoxious, and the ones like EULA that are, earn their contractees an old-fashioned written letter.
I'm ready to escalate to #2 pencil on yellow ruled notepad if needed.
Someone long ago told me that you should never unilaterally accept liability release language on an employment application, either. You usually find that language used in the same paragraph where they want you to agree to letting them poke though your credit, background, and "mode of living." One reason why you should not agree to the liability release or the invasive investigation is that they can find out things about you that they cannot legally ask you in the interview, such as your religion, political views, health, or marital/parental status. If you release all parties from liability for what they say about you during the background check, you cannot sue a previous employer or nasty neighbor for telling lies about you. If the potential employer gathers or uses information about you in bad faith, and you find out, you cannot hold them accountable.
You'd be surprised how many times I've handed in applications, answered the questions of a surprised interviewer, and had them look at me like I just told them their pants were on fire. Some people claim their legal department makes them put that language on the form--I tell them my legal counsel makes me refuse to agree. I point out that I am merely exercising personal responsibility and due diligence. The light bulb often goes on above their heads at that point.
I am not a lawyer, and this stance may have cost me a job a couple times, but I don't want to work for a company that wants to screw me before I even have a job there.