Need Employee Non Compete

[David Roth weiss]

Steve,

See the non-compete agreement below that I just drew up especially for you below. Like most non-compete agreements it is normally signed before hiring, when the employer has leverage, rather than at the termination of employment. However, you can probably deal with that. Feel free to modify the agreement as needed.

Hope this helps…

David
————————————————————————————-

For good consideration and as an inducement for_________________ (Company) to employ _________________________ (Employee), the undersigned Employee hereby agrees not to directly or indirectly compete with the business of the Company and its successors and assigns during the period of employment and for a period of _____ years following termination of employment and notwithstanding the cause or reason for termination.

The term “not compete” as used herein shall mean that the Employee shall not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company may substantially engage during the term of employment.

The Employee acknowledges that the Company shall or may in reliance of this agreement provide Employee access to trade secrets, customers and other confidential data and good will. Employee agrees to retain said information as confidential and not to use said information on his or her own behalf or disclose same to any third party.

This non-compete agreement shall extend only for a radius of ________ miles from the present location of the Company and shall be in full force and effect for ________ years, commencing with the date of employment termination.

This agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives.

Signed this _____ day of ________________________ 20____.

_______________________________________
Company

_______________________________________
Employee

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY ™

A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.

[Zane Barker]

Like david said these type of agreements are normally signed BEFORE they start work for you. At this point what is the employees reason to actually sign it for you, after all he is already leaving.

There are no “technical solutions” to your “artistic problems”.
Don’t let technology get in the way of your creativity!

[David Roth weiss]

Steve,

In case you can’t get ’em to sign, holding lit candles under an employees feet can be very persuasive… Just be careful not to drip any hot wax on your floors, it’s hard to clean up.

David

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY ™

A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.

[Timothy J. allen]

Just make sure that it’s over a smooth concrete floor – then it’s easy to clean up with a razor blade once the wax dries.

😉

Seriously… thanks for posting that publicly David. It’s just good for folks to see that the elements of any contract are there.

In plain language, you have documented:
1. Who the agreement is between. (The undersigned and “their successors, assigns, and personal representatives”)
2. What – (direct or indirect competition, disclosure of trade secrets and confidential data etc.)
3. When (for a period of up to __ years)
4. Where (radius of __ miles from the present location of the Company)
5. Why – for both parties (for consideration and employment/to protect trade secrets, etc.)

If nothing else, the agreement makes your stance on disclosure of your intellectual property to a third party very clear and the agreement proves that you discussed your stance with the employee. Those elements are extremely important if a problem with the former employee ever arises.

[Todd Terry]

[Timothy J. Allen] “Just make sure that it’s over a smooth concrete floor”

No, you do it outside, or in a shack by the docks. Work smarter, not harder, people.

But seriously… what are the legalities of an after-the-fact non-compete? A contract would have to have consideration, and unless you are paying him something specifically to sign the non-complete, there is no consideration in this case.

You could argue that you have paid him for years of work in the past, but he would argue that money was for other work that was already done… and he would be right.

I’m just not sure if an after-the-fact non-compete has much legal standing. Perhaps it does, but what is his incentive to sign it? If I were the employee, unless I was leaving on the absolute best best of terms and the employer was a close relative…. I wouldn’t touch it with a ten-foot pole.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com

[Timothy J. allen]

True… if the employee is already leaving, you are pretty much at his or her mercy on whether it gets signed.

Are you throwing this employee a “farewell” party? 🙂

[Ron Lindeboom]

[Timothy J. Allen] “Are you throwing this employee a “farewell” party?”

…and a really nice farewell party?

🙂

Best regards,

Ron Lindeboom

Remember: Burt Bacharach lied. What the world really needs now is an undo button.

[David Roth weiss]

[Timothy J. Allen] “Just make sure that it’s over a smooth concrete floor – then it’s easy to clean up with a razor blade once the wax dries.”

Tim is right, working over a suitable hard floor is a lot less painful for the employer.

[Timothy J. Allen] “In plain language, you have documented: who, what, where, when, and why…”

Spoken like a true journalist Tim… The five w’s are what gets my blood circulating every morning. Inquiring minds want to know…

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY ™

A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.

[Tim Kolb]

Uh…Steve…my friend…good luck with this.

As has been mentioned…a non-compete is a condition of hire…not dismissal or resignation. Are you not going to fire him if he doesn’t sign a non-compete? …or if he’s leaving on his own…is he not going to quit if he doesn’t sign a non-compete?

You have no leverage. I’d try a cash bonus or something as a motivator, but if it’s just “here…sign this before you leave”…again, good luck.

All that said…very few non-compete agreements stand up in court anyway as the courts or juries usually end up standing just slightly on the “you can’t take away a person’s means of making a living”…side of the fence.

If this person was at all significant to the client experience with your company and competent, you may have some clients follow him of their own accord…that is certainly not something you can control legally either.

If you have any sort of relationship with this person, I’d be very careful as your personal relationship with this person may afford you more protection than some hastily signed piece of paper signed after a relationship-damaging session of arm-twisting.

My 2 cents…

TimK,
Director, Consultant
Kolb Productions,

CPO, Digieffects

[Mick Haensler]

It’s to late for Steve. See my post here on the thread “Good books for marketing” right below.

Mick Haensler
Higher Ground Media