Employee and Contractor Agreements to Protect Publishing
Here are some examples of agreements and provisions
associations can use to protect their intangible assets, including confidential
By Tobias E. Schlueter and Jasmine
In an era where there is no longer any such
thing as a typical workforce, the advertising sales teams for many publisher
associations tend to be comprised of both the association’s employees and
independent contractors. Many questions tend to arise regarding an association’s
rights in relation to these mixed workforces, and particularly about how an
association can best protect its intangible assets from competitors.
These "intangible” assets include client
lists, information about special editorial or other projects, and original publication
or story ideas. Certain intangible information can be legally protected from
disclosure under state common law, including through state iterations of the
Uniform Trade Secrets Act. But, because
common law can be limiting to pure trade secrets, associations have other tools
that they should consider, ranging from (at a basic level) confidentiality
agreements to (at a high level) full restrictive covenants, including
protections against competition, non-solicitation and non-disclosure.
Here are examples of agreements and
provisions to protect associations:
1. Confidentiality Agreements. Confidentiality
Agreements, also known as Non-Disclosure Agreements (NDAs), are the most basic
tools that associations can use to protect their confidential business or client
information from disclosure. These agreements can be especially important when
the information that the employer seeks to protect is confidential, but may not
rise to the level of a "trade secret.” Associations can also use these
agreements to establish that they take reasonable steps to protect their
confidential information, which is a key evidentiary point for enforcement.
2. Works-Made-For-Hire Agreements.
Another type of agreement that does not rise to the level of the restrictive
covenant, this type of agreement can give an employer ownership rights over
certain creative works made by employees within the scope of their employment,
or which were specially created by or commissioned from an independent
contractor. As such, this kind of agreement can be especially relevant to
publishers and associations.
3. Non-Competition Agreements. Non-Competition
Agreements (NCAs) generally restrict an employee’s ability to compete with the
employer after the employment relationship ends. NCAs typically restrict an
employee’s ability to work for competing organizations for a certain period of
time. NCAs are generally disfavored by courts because they tend to be
considered unlawful restraints on trade.
4. Non-Solicitation Agreements.
Non-Solicitation Agreements (NSA) restrict an employee’s ability to contact, or
solicit, an organization’s clients and/or employees for a certain period of
time after the employment relationship ends. These agreements tend to be more
favored by courts than NCAs since they do not restrict an employee’s ability to
5. Garden Leave Provisions. Garden leave provisions can be used in
addition to or in lieu of other restrictive covenants. A garden leave provision
requires an employee to give the association a specific notice period in
advance of resigning. In exchange, the association pays the employee during the
notice period, but prohibits the employee from coming to work and cuts off the
employee’s access to confidential information. In this arrangement, the
association can prevent the employee from immediately going to work for a
competitor while simultaneously limiting the employee’s access to confidential
information after resignation.
Tobias Schlueter is a shareholder with Ogletree Deakins, an international
labor and employment law firm. He is based in the firm’s Chicago office and
practices in the area of Unfair Competition and Trade Secrets. Jasmine
Simmons is an associate with Ogletree Deakins and is based in the
firm’s Los Angeles office and practices in the area of Unfair Competition and
Editor’s note: Don’t
miss the authors’ comprehensive article on this topic in the next issue of
Association Media & Publishing’s member magazine, Signature.