From the April 2007 issue of Investment Advisor • Subscribe!

What if the Horse Has Left the Barn?

More On Legal & Compliance

from The Advisor's Professional Library
  • Use and Misuse of Social Media Social media is an inexpensive and effective way to communicate with established and prospective clients.  Nevertheless, when RIAs utilize social media to promote their advisory practices, they risk compliance problems for their firms.
  • Code of Ethics Rule The Code of Ethics Rule, found in Rule 204A-1, uses severe consequences for violation to help ensure investment advisors will do the right thing.  

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.

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