[Nick Griffin]

Most of what Scott says is true, especially the part about different states (in the US) having very different ways of interpreting non-compete laws. From my limited exposure to this, non-competes are best when they don’t prevent people from making a living, just attempt to limit what they can do for clients you introduced them to. Also agreements are much stronger when based on actual employment, not just a one-time freelance gig.

Simply put, you can’t say “may not work on any other production company within 200 miles of where I do business for a period of two years.” That won’t hold up and every lawyer knows it won’t. “May not work with ( company name — specifically the company for whom you are employing the person), who was met through work for our company, for a period of 1 year…” is a much stronger and more enforceable contract, especially when executed for each and every engagement.

All well and good considering the points that Scott makes about the difficulties and expense of obtaining a judgement and then trying to collect. Here’s where we get to the actual functionality of non-compete agreements: giving the IMPRESSION that you have a strong and enforceable contract because you have required the agreement to be signed. I suspect that very few freelancers have close relationships with a lawyer and I assume, based on past experience, that when most people sign an agreement and are given a copy of what they signed, they are more likely to take it seriously.

We use a “purchase order for services” which has many clauses about dates, deliverables, statement of being an Equal Opportunity Employer and many other clauses. However the biggest and boldest thing on the two page agreement is the non-compete. Is it enforceable? In the 25 years since our lawyer created it, we haven’t had to attempt to enforce it… yet.

[Nick Griffin]

[Scott Carnegie] “Anything you create under their employment as a part of your job with them they own, final renders, project files, etc.”

Uhhh, maybe yes, maybe no. It can be argued (as it has been here before) that project files are work method and not work product. But I think the earlier points are more important — if you leave, leave on the best terms you can. That’s a potential source of future work and referral. A ticked-off client, feeling that they’ve been ripped off is not.

[Nick Griffin]

I think you’ve already said it all: You’re their “employee.” IF you were there sub-contractor and IF you have a contract which gives you some property rights, this would be at least a potentially different situation.

[Nick Griffin]

Sounds to me like David has identified yet another individual with the unrelenting drive and ambition to succeed in show business NO MATTER WHAT.

[Nick Griffin]

[Mark Suszko] “You are paying the outside payroll company for peace of mind.”

And you are paying the payroll company’s fees so you don’t have to withold the taxes and have the IRS and state tax authorities treat you as the talent’s employer. One alternative is to use talent who has their own production company and therefore you employ the company and they employ the talent.

None of this is simple or inexpensive, but in the long run that’s how you get to work with the best talent and once you get into using union talent you will quickly find that, far more often than not, they are much better than non-union talent. (IMHO.)

[Nick Griffin]

Larry –
Does the manufacturer claim any particular shelf life for the card’s DATA? My greatest fear with any form of back-up is what will be there when you need it in 5 years? 10 years? Didn’t I read somewhere that even CDs and data DVDs are only reliable for less than 20 years — provided that they are kept cool, dark and dry? Hard drives, also regarded as quite cheap based on their capacity, have to be spun up every few months to remain viable, and even then to be truly safe you should maintain redundant hard drives. We’d all probably benefit from some reliable and authenticated research into all types of back-up.

[Nick Griffin]

[Michael Mahoney Jr.] “they CAN bring me a new agreement to sign – and my Consideration for signing (what I get in return) is to keep my job.”

I’m not sure that is true. At least it wasn’t a few years back when my wife was going through agreeing to a non-compete contract that her company wanted her to sign more than a year after she had been working for them. Consideration isn’t not taking something away.

Michael, your situation also reminds me about something I went through 8 years ago with one of the world’s largest chemical companies. (Trust me, you’d recognize the name.) After two very successful meetings which established that we were extremely qualified to handle projects for one of their divisions, they provided their standard vendor agreement and I showed them my rates. They we SHOCKED that we wanted twice as much per hour as other vendors doing similar work. I pointed out that we could do with two or three people what the other guys were doing with ten people, each being paid at their approved rate ceiling. They, being one of the world’s largest corporations, couldn’t do the math of 2 times 2X is less than 10 times 1x, and insisted that we agree to their rate. The guy who brought me in even pulled me aside and whispered, “Use their rate and just tell them that everything took twice as long.”

This then came down to a moral decision for me. Our timesheet system is the basis on how we charge most of our clients. How could I deliberately game the system for one client? It’s kind of like the best reason to be honest with everyone — those who tell the truth have so much less to remember than those with a different lie for each situation. Combine that with the fact that their contract said that they could pop into our business at any time, without advance notice, to audit our business records and I said, “Screw it. Honesty is the best policy” and turned down their business.

So I can relate to you not wanting to sign an agreement that you intend to ignore. So do what was discussed earlier and stall until you have to sign and then turn in the agreement with the objectionable clause stricken or amended to say something to the effect of “work created during standard business hours.” Then you can have the fight, if necessary.

I still think that finding a way to do the work as a freelance outsider might be the best way to go, but then I’ve been self employed since I was 25.

BTW –
Just in case you didn’t read the notice at the top of this forum, everything on the net, including the COW, IS indexed by the search engines and any HR rep clever enough to Google “Michael Mahoney Jr.” will find this thread at position #6 (or higher). Another good reason to make honesty the best policy.

[Nick Griffin]

I’m not going to go as far as to reverse my earlier post on the Corporate Video COW (where this thread began). But I do admit that perhaps I misread or over-interpreted Michael’s original post. I was under the impression that the resignation had already happened. If it has not, and a state of limbo still exists, then by all means he should look for middle ground, keep attempting to negotiate or, as was suggested directly by Cory and indirectly by Craig, STALL. Force them to make the moves. Just be sure that while this is going on you are doing your job and never giving them any excuse for claiming under-performance.

As to contacting a lawyer, while that’s probably a good idea, Michael may find out what he needs to know by contacting the labor board in his respective state government. I’m not a lawyer — and I don’t play one on TV — but I seem to recall that signing a non-compete requires some form of “consideration” and that an employer can’t go to an existing employee and ask you to agree to something new like this without giving you something in exchange for doing so. At least that’s the way it was in my state. Which brings up the points offered by the boys from the other side of the pond…

Employment law in the US is substantially looser than it is in the UK and especially more favorable to the employer than it is in most of Western Europe. There are many states here where employment is entirely at the will of the employer, ie.- they can release any employee, anytime they so desire without any cause whatsoever. Not to say that litigation for wrongful dismissal can’t be brought under truly extreme circumstances, but these kind of lawsuits are very expensive and can last years. This pro-business (at the potential detriment to the employee) attitude is one of the reasons it’s considered simpler and less expensive to start a new business here than it is in Europe. Not saying it’s right or wrong, just how it is.

[Nick Griffin]

Great tips, Todd. Thanx for sharing!

A few decades ago when I was studying studio still photography the teachers had us buying white plastic shower curtain material and using canvas stretchers from an artist supply store as the frames.

The plastic gets attached to the wooden stretchers with a staple gun. With this combination of materials a series of enormous diffusers could be put together dirt cheap and by removing the staples and taking apart the stretchers, they could be broken down to a very small size for easy transport.

The downside was that over a couple of years the shower curtain would yellow and, in the film days, this color shift was no where near as simple to deal with as it is today. Then again, getting more shower curtain was, and I presume still is, a very inexpensive proposition.

[Nick Griffin]

Michael –
This sucks and you have my full sympathies and understanding. Large companies will almost always refuse to modify blanket contracts for individuals. That’s a stark reality. I don’t disagree with your choice, but that’s mostly because I’ve been self-employed for over 30 years and have enjoyed it.

So before this discussion goes much further, please put this same post on the Business & Marketing COW. This is exactly the kind of thing discussed there routinely. Not to say this won’t be seen here, but you will likely get more input over there.

It will be interesting to see what others have to say, but I fear that you have been given a clear ultimatum and selected your freedom over your short term financial security. Looking back years from now this could be seen as the start of a flourishing freelance career. Or it could be viewed as a misstep that took months or years to recover from. Time, and your level of effort, will make the difference.

What comes immediately to mind is two things: 1) Would some of the people in the original company be able to sub-contract your services, thereby providing you with your first client? They already know you and your work so this could be an easy way for them to hold onto your expertise. What you would have to give up is ownership of any work for hire done for them — NOT anything personal for which they did not specifically contract.

2) Do you know of any competitors who could use your services? Your pitch could be that you’ve left X company and gone out on your own, offering your services to a larger audience.

Should you opt for going freelance and starting your own business rather than being someone’s employee, please be sure to read some of the many Business COW threads on determining what your rates should be. Your overall cost of doing business is far greater than what you’ve been receiving as a net salary so be sure to plan for this.

Best of luck and hope to see this thread bring you many good ideas.