Policies & Agreements

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shaking_hands_xs“You get what you pay for.”

When a dispute or lawsuit arises, often the most important exhibits are the written documents. This is true whether it is an employment agreement, a sales contract or invoice, a covenant against competition, confidentiality or trade secret agreement, or an employment handbook, policy or form.   Too often we find our client’s interests are undermined by poorly drafted (or non-existent) key documents that fail to protect the client’s rights or limit the client’s liabilities.  This is truly a missed opportunity for risk containment, since vital legal rights could have easily been protected and maximized if the document had been drafted correctly in the first place.  

Use of inadequate documents seems to occur for several reasons:

  • Bought a “canned” form from a national outfit that promises that “one size fits all.”
  • Used the same form that was originally properly drafted many years ago, but without ever updating the form for changes in the law or changes in how the form is used.
  • Relied on the “expertise” of someone who knew just enough to be dangerous, but who really wasn’t fully qualified to make the best drafting decisions for the legal issues involved.
  • Copied someone else’s form, which may or may not suffer from one or more of the above problems, including being “tweaked” by others who “knew enough to be dangerous.”
Don’t let your ability to win a dispute or enforce your rights be undermined or lost because of a lack of documentation or use of out-dated or poorly-drafted documents.  

Drafting and Reviewing Key Employment Documents.

We can provide specific policies or an entire employee handbook, or we can review and suggest edits and improvements to your existing documents to be sure that you are up-to-date and properly protected.  Here are some examples of key employment related documents:

Agreements:

Employment Agreements and Contracts (at will, term, commission, project-based, etc.)
Independent Contractor Agreements
Arbitration Agreements and Mandatory ADR Systems
Noncompetition Agreements
Nondisclosure and Confidentiality Agreements
Nonsolicitation of Clients and Employees Agreements
Trade Secret and Intellectual Property Protective Agreements

Handbooks:

Employee Handbooks
Policy Manuals
Procedures and Guidelines

Policies & Forms:

Individual Employee Policies and Forms relating to:
  • FMLA and other Leaves of Absence (Military, etc.)
  • Neutral Absence Control
  • Attendance
  • Safety and Security
  • Drug and Alcohol Testing and Substance
  • Document Retention and Disposal
  • Bona Fide Sick Pay Plans for Exemption Salaried Employees
  • Pay Day Act Compliant Payroll Deduction Plans
  • EEO and Harassment Prevention and Correction
  • Investigation Procedures
  • Background Checking and Screening Procedures (FACTA, FCRA)
  • HIPAA Privacy Compliance
  • Severance and Retention Plans and Releases
  • Search, Surveillance and Monitoring
  • Computer, E-Mail and Internet Use
  • Grievance Systems
  • COBRA and Texas Health Coverage Continuation
  • Layoff Criteria
  • Early Retirement Incentive Packages
  • Modified Duty and Return to Work Programs
  • Foreign Corrupt Practices Act Compliance
  • At-Will Disclaimers
  • Progressive Discipline
  • Conduct Standards
  • Conflict of Interest
  • Non-Fraternization
  • Violence and Weapons Rules
  • Travel and Reimbursement Conditions
  • Solicitation and Distribution Restrictions
  • Accommodations for Disabilities and Religious Beliefs
  • Hiring Criteria and Guidelines
  • Interview Guidelines
  • Compliant Application Forms
  • Offer Letter Disclaimers and Conditions
The above is not exclusive or exhaustive.

Noncompete Agreements

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We draft noncompete agreements, and we have fought for clients to defeat noncompete agreements.  These type of arrangements, often coupled with confidentiality and nondisclosure agreements, as well as with nonsolicitation agreements, are among the more common ways that businesses face off against each other while playing tug of war with a former employee/newly hired employee.


Anyone faced with a noncompete agreement (also known as a covenant against competition, among other names) should read it closely and get professional advice about it before relying on it.  Often forms drafted by out of state lawyers are well written and enforceable in other states, but may not be enforceable in Texas for a variety of reasons.  Using someone else’s form without thoughtfully tailoring the agreement to the specific business activity and goals involved will likely result in an unenforceable or substantially flawed instrument that will disappoint all involved if ever tested.  We often see agreement forms that refer to a job description or other attachment, yet nothing is attached.  Or we find that there are written employment policies and other documents (e.g., confidentiality agreements) that conflict with one another, or were implemented in a contradictory manner.

Careful tailoring of the restrictions is particularly important for noncompete and confidentiality agreements.  What is important to one industry may be irrelevant to another.  Properly defining key terms, such as the description of "Business" and adding to (or deleting from) items in the “Trade Secrets and Confidential Information” laundry list is vital for similar reasons.

Whenever we work with noncompete agreements, we remind clients that probable enforcement must be viewed as relatively tentative.  The general rule in Texas is that noncompete agreements are disfavored as restraints of trade.  They are therefore often hard to enforce even when written well.  By law, they are only enforceable if they are

  1. related to an enforceable agreement that gives rise to the need for the noncompete, and
  2. the limitations as to time, geographical area and scope of activity restricted are reasonable and not greater than what is needed to protect the employer's legitimate proprietary interests.  This criteria is an oversimplification and is not as straightforward as it may seem.  The courts are constantly tinkering with it, leaving everyone a little uncertain about the subject from case to case and year to year.

Obviously, this does not begin to cover all the nuances of noncompete law.  Noncompetes can be enforceable when drafted well and implemented correctly.  But not all competitive behavior can be prevented by noncompetes, and the best way to restrict unfair competition varies over time and from circumstance to circumstance.  No one can rely on the same form for years and years. Something that seems appropriate based on current case law may not work in the future.  These types of forms must be revised and updated regularly.  With that said, noncompetes are still widely used and are quite effective on a practical level, as they tend to deter unfair competition.  Most competitors and former employees do respect the fact that litigation can be very expensive and unpleasant, even if they think they might technically "win" by defeating the enforcement of the noncompete.