It is ideal to have a new employee sign a restrictive covenant when he begins his employment. But what if you don't do so at that time? Is it too late? The short answer is no. However, you should not present the agreement to an existing employee without first ascertaining whether the state in which the employee is located is a "consideration" state. If you do (or you already have), you may unfortunately have an agreement that is unenforceable against the employee. In a "consideration" state, the employer must provide adequate consideration to the existing employee in order for the employee's non-solicitation covenant to be enforceable. In these states, the employee's "continued employment" is not adequate consideration. Depending upon the state, adequate consideration could be a raise, bonus, or promotion. I generally prefer a one-time execution bonus so that the employee cannot later attempt to assert an insufficient consideration defense to enforcement of the agreement, claiming that he was due the raise or promotion in the ordinary course of his employment. Even in "continued employment" states, I recommend that the firm consider providing the existing employee with some type of consideration.
Secure the future of your business with customers from the largest generation in history.
Part II in a series of articles on working with ultra-high-net-worth clients from IMCA's Investments & Wealth Monitor takes a look at the biggest trends...
Maximize client retention and promote firm growth by using this 6 step interactive client review process.
Oct 05, 2016
Some broker-dealers have already decided to exit certain lines of business and are sizing up how the rule will impact their IT and compliance budgets....
Sep 21, 2016
Join Eric Ryles, Managing Director at Judy Diamond Associates, for a 60 minute session of mutual fund analysis within the Defined Contribution market. Using...
Sep 13, 2016
Nationwide is providing a deeper look into the rule’s implications and a discussion of decisions firms will need to make in order to comply.