I am a senior software developer. My employment contract requires management approval for any side job or side project (for paid & unpaid). I asked my manager twice for permission to develop and publish my own apps as a side activity (not competing with the company) in my free times, and both times he refused. His reasoning is that a side activity could negatively affect my performance.
This puts me in a difficult position. I donât want to do anything illegally or hide side projects, but at the same time I feel professionally blocked and unable to develop myself or prepare for opening my own company in the future. Quitting immediately is risky, because finding a new job could take 6â7 months in the current market. Unfortunately there is almost no job available in my area in the entire Switzerland.
We have a strong project idea, and a close friend of mine wants to open a company for this project. He is waiting for me to join, and I donât want to lose this opportunity.
What makes this situation more frustrating is that a colleague of ours who works in Germany is allowed to do exactly this. he has his own company and working in side jobs.
Anyway, my main question is about unemployment benefits in Switzerland:
If I resign voluntarily for this reason and explain the situation transparently to RAV, would I still be eligible for unemployment benefits after a waiting period? Or does voluntary resignation always lead to a suspension of benefits, regardless of the reason?
I want to act correctly and legally, but I also need to survive financially while looking for a new job. Thanks in advance, and I wish everyone a great start to the New Year.
In Switzerland there is an old saying: âChash nöd dĂ€ Föifer und s Weggli haâ. It must be very old, because a Weggli (bread roll) was only 5 Rappen.
If you want a bread roll you will have to spend the 5 cents. There is a 2 month waiting period for the unemployment benefits. And if you declare your situation correctly you may not get any at all.
Usually you need some capital to start a company. As I understand it your friend would forward that and you would have to put in work. So you work, you are not unemployed. If you explain the exact fact you will not get any unemployment benefits.
And that is probably OK. It is always a risk to start an enterprise, but you do it partly for the reward too. Why should everybody else working his ⊠off pay you for that?
Ask for legal advice whether this is enforceable (if youâre member of union itâs probably free, otherwise you should probably reach out to some lawyer).
If youâre not competing with the employer Iâm not sure they can forbid you. That said itâs Switzerland so if they somehow discover it, and they donât like it and fire you, even if you win in court youâll get at most of few months of salary (and still be out of a job).
Your benefit period has begun and you are entitled to unemployment benefits.
They are unemployed through no fault of their own. In cases of self-inflicted unemployment, there must be no causal link between the termination of employment and the commencement of self-employment.
You must not already be self-employed: The planning phase serves solely to prepare for a new company or activity.
Maybe they have other plans they consider as well (different employer, etc). Or they donât know yet if it can turn into a full time activity and they want to explore this
Anyway didnât seem to be an issue for the cases I know about.
My understanding is that the setup searched for would include partial employment and partial self-employment.
The main requirement for RAV is that you are actively searching for a job and will take one if you find one. You can be partially unemployed (that is, you are looking for a job at, for example, 60% so are unemployed at 60% and use the 40% for your self-employment). This may or may not require you to be employed at 60% before quitting your present job.
Itâs not a given and you would get the penalty for self-quitting but Iâm not sure you couldnât get RAV at all. If your position/skillset is so specific that only one employer matches it in Switzerland, you may be required to do some training in order to increase your employability by other companies.
There may be startup incubators or other programs designed to help launching new businesses in your Canton. You may also want to look into what they have to offer.
I would play it straight.
Edit: One thing to keep in mind is that RAV is usually not perceived as something you plan for. It is there to support workers in time of hardship but isnât considered as a way to help plan job transitions or self-employment (itâs not meant to be part of a career or business plan).
I used to have a similar clause but donât recall it also covering unpaid things. That seems like a stretch as surely youâre allowed to have âhobbiesâ without having to ask your employer for permission.
As long as itâs unpaid, not competing with your employer, not (yet) incorporated, and (important!) youâre not using your employers materials / IT systems / etc., I frankly speaking donât see how they can stop you from pursuing your interests in your OWN time. Whatâs the worst they could do⊠fire you? Gee, thatâs not a big threat given youâre considering resigning (potentially without RAV benefits).
Donât let companies enslave you. Follow your own path. Once it does become a working business, time to reconsider.
Getting off topic but the bigger issue is IP rights and potential claims of invention. Moonlightning - whether paid or unpaid doesnât really matter here, since as SWE youâd be creating new IP. Including open source in some situations. Which might or might not interfere with current employers business, current or distant future. Unwillingness of HR to sign off makes sense as they donât benefit in any way - it will impact your performance if its structured and recurring - even ignoring the <45h labor laws in Switzerland.
As so often, HR is not your friend, strongly emphasizing to not touch anything by company (computers, systems, github/VSS agents etc). RAV is pretty clear, if HR+Legal doesnât sign off itâs a binary decision if staying by the book.
Yes, best to always resolve this in the contract upfront (something Iâll also pay close attention to if/when I become employed again, as I want the freedom to retain side-gigs without having to ask for permission). Having said that, if heâs not using company assets and not competing with the company, and assuming he keeps quiet about it until he eventually resigns, thereâs realistically no likelihood that the employer will go after him and claim IP.
Switzerland is one of the best country for employee IP/inventions, at most they can buy a license from you, only work done for contractual obligations has copyright transfer by default.
Even work done with company property/company time can still be yours (if you werenât tasked to do this).
I understand it might be uncomfortable, but I would also try to move the project forward in the free time so that you at least have something pretty solid before leaving your day job.
Your manager might just try to protect your future in the company and keep you off the radar from HR. Promotions / raises might be harder to negotiate if everyone is aware youâre working on something else.
I would try to leave as little proof as possible around especially not talk too much about it at work. However itâs hard for a company to prove things you do on a personal computer⊠They would probably also not be interested in the IP on a project not related to their business especially if a bigger structure.
You should still invest in the new company if you incorporate (for your protection) but without an official role while at your job.
Who owns the rights to an invention or design created as part of an employment relationship?
First, check if the employment contract deals with this issue. If it doesnât, then article 332 of the Swiss Obligation Code is applicable.
In your first link, it suggests at 332 applies only if the issue isnât regulated in the employment contract.
Not sure what you mean, Art. 332 only allows a narrow scoped reserve in the contract (the second paragraph). I think most contract would exercise it (at least my contracts always claimed it, but nothing more since it shouldnât be allowed).
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