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Employee and Contractor Agreements to Protect Publishing Assets - 11/20/2015 -

  
Schlueter   Simmons
Employee and Contractor Agreements to Protect Publishing Assets

Here are some examples of agreements and provisions associations can use to protect their intangible assets, including confidential information.

By Tobias E. Schlueter and Jasmine E. Simmons

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 work.

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 Trade Secrets.

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.


 

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