Protecting my human assets

[glaze]

How do i protect myself from having my biggest client
hire my programmer and cut me out of the picture?

I'm about to hire a programmer to help me on a large project. My one person web development company operates out of a larger marketing company — where I operate as their Web development department doing the design, HTML, CSS, JavaScript and ActionScript. For projects requiring PHP, ASP, CF, etc I contract the work out to programmers.

I need to bring a programmer in-house for a large project and I'm concerned I could be cut out of the picture if the marketing company I work with hires him out from under me.

Are there ways to protect myelf from this?

[digitalv]

I'm normally against non-competes, but the solution is to have a lawyer draw up an employment contract for you and make your new hire sign it before working. It basically just says that your customers are yours and he can't steal them, go work for them, or have any communication with them for any purposes other than the job you've hired him for. A typical non-compete is two years, and you should renew it every year. This means that he couldn't go work for your client or competitor for two years after he stops working for you.

In reality though, these are very difficult to enforce because most states are "right to work". In your case enforcement may be possible, however only if it's a real back-stab. If the client doesn't want to work with YOUR COMPANY but likes your employee, they may make him an offer anyway and there might not be anything you can do about it. It's a risk that every business owner takes.

[Brett_Tabke]

NDA and employement contract that specifically says they won't go to work for a client. Also make sure your client contracts include clauses that they will not hire any of your employees for 1-2 years after you complete the work for them.

[digitalv]

It's scary when Brett and I start having the same answer... heh.

[glaze]

Thanks for the responses. Believe it or not I rarely work with contracts, especially with this marketing company. In this case I think I will have to have one drawn up.

The main issue is that there will be a lot of communication between the client (the marketing company) and the programmer, in fact we will be in the same office area so there is an opportunity for them to develop a relationship with him/her.

[EileenC]

I have an answer to this from a slightly different angle. As a copywriter, I sometimes am hired as an independent consultant for a project by an ad agency. It occasionally comes up in these types of relationships that the end client doesn't want to work with the agency anymore, but does want to use the copywriter. In cases like these, something is usually worked out so that the copywriter pays a 10% commission to the agency for the next year's worth of billings to the end client. It recognizes that these things do happen, and it's a courtesy that seems to keep everyone, if not exactly happy, at least not feeling ripped off by the situation.

[raywood]

It's happened to me and cost me a ton of money. Right-to-Work usually means you have lots of trouble trying to restrict an employee's right to work for whomever he wishes anytime he wishes. It's also pretty difficult to restrict a company from hiring anybody they want. But entering into an agreement that says something like "if you hire my employee then you owe me a fee" seems to have worked in many cases. You still lose the employee, but at least you get compensated. Better get a good labor lawyer to help before you do a deal.
ray

[macrost]

Just my .02

I will never sign one of these damn documents again. It basically screwed me from making a living for a year in my industry. The only way I could have gotten out of it was through an expensive lawyer.

I don't care how much you want to pay me, if you have a non-compete that goes on for a year or two after the fact, you can kiss my rear and hire some lackey that has no imagination or drive.

There, I feel better now.

[glaze]

Yeah I agree at non-competetion clauses in contracts are difficult to enforce.

In my situation I'm only specifying one company that my employee may not work at for up to a year after his/her release from my company.

[alain_bonaf]

>I will never sign one of these damn documents again. It basically screwed me from making a living for a year in my industry. The only way I could have gotten out of it was through an expensive lawyer.

I don't know for US, but in France, that kind of contract can be broken if the employee has to make a living: the firm cannot sue the employee for that.

[herb]

*** Deleted, started offering legal advice and I'm not an Attorney...
Sorry.