When you are courting that new employee, frequently you will present him or her with a rather lengthy employee agreement that contains all the bells and whistles. Obviously this includes the standard pay/benefit information and maybe some post-employment covenants like a non-compete or non-solicit.
Often times within the recitals there will also be a provision that reads something like this:
Employee has had sufficient time and an opportunity to consult with independent legal counsel regarding this agreement and fully understands the provisions of this agreement.
In most situations the new employee does not consult with an attorney. They read the agreement, maybe discuss it with some friends, and sign. Why? Because lawyers cost money, they may not know the right lawyer, and they don’t want to delay the hiring process.
Here is a suggestion, pay for the employee to go and consult with an attorney – if it makes sense. When does it make sense? Situations where it a highly compensated employee or an employee who is going to be exposed to proprietary information and you want/need that non-compete and non-disclosure agreement to stick. There is no better evidence when moving to an enforce a non-compete and the employer gets to say that it paid for the employee to consult with an attorney about the very agreement at issue. It’s hard for an employee to say they didn’t know what the agreement was about or didn’t think it was enforceable if they talked with a lawyer. It also avoids the impression that it was boilerplate language the new employee had to sign.
If the employee doesn’t know an attorney have your lawyer get them a referral. Agree to some type of flat fee for the consultation up front so you know the cost. Again, this doesn’t make sense in every situation but it should at least be considered.
