Professional or Executives
We represent professionals and executives in negotiations and/or litigation against employers. Most of these representations deal with non-competition agreements – either on the way into an employment relationship or on the way out, and intellectual property agreements.
We don’t usually negotiate salaries or the dollar amount of severances or buyouts. Our clients can handle that for themselves and are typically experienced doctors, executives and other professionals. What we negotiate are the other parts of an employment agreement that seem like side-issues on the way in, but can be huge issues on the way out. Things like choice of law provisions, arbitration provisions, intellectual property agreements and noncompetition agreements, even the terms of what is being fired for cause, or resigning for good reason. We review proposed contract language and can suggest some of our own that has been used in the past and upheld in court.
- The best time to negotiate: Hardly anyone wants to have a hard negotiation to start an employment relationship, but this is usually the best time for a professional or executive to get contract language that will serve them if things go sour. When the company wants you is the time to negotiate, not when things are hardened.
- We won’t kill a deal: We negotiate hard, but won’t kill a deal for our clients if told not to. We begin by understanding what our client’s role with the company will be, and understanding if there are any unique issues, particularly with regard to intellectual property. We then review company-proposed contract language, give our client advice on what is likely to become an issue on the back end and how to fix it, then can either negotiate directly with the employer’s HR representative or counsel, or provide advice while our client negotiates.
- But we will go to court if needed, and know what to do when we get there: Because we are litigators, we can legitimately tell the other side that we have stood in court and either defended our contract language or cut down an employer’s language.
Non-competition agreements (also called "non-competes") operate to restrain employees from leaving a company and competing directly or indirectly with their former employer. They are widely used in Texas for doctors, dentists and other professionals, as well as executives. In Texas, non-competition agreements are subject to anti-trust protection and are enforced only up to the point where they are a reasonable restraint of trade and work to protect legitimate business interests – they aren't allowed to be a naked restraint of trade. The noncompetition agreement has to be reasonable as to time-length and geography. These elements vary based on the type of work being restrained, who besides the professional is impacted (medical patients), and the geographical reach of the professional’s work.
We represent executives and professionals on negotiating non-competes as part of employment agreements before the professional joins the company, when the company is more likely to be reasonable in negotiation, and also on the way out as part of either a severance agreement or as part of the executive’s relationship with a new company. We are also happy to counsel professionals as to the effect of non-competition agreements before they leave the company, so a structured withdrawal can be negotiated.
Intellectual Property Agreements
If an executive holds intellectual property (IP) rights – for an idea, a patent, a system – that the employer is hiring you for, you need to protect your IP rights so they continue to belong to you even if you leave the employer’s service. IP rights can have a long-term value which is outsize in relation to the rest of the employment agreement. While some professionals license IP rights to multiple companies, when you are being hired for your intellectual property it needs to be protected so it isn’t lost if you have to leave the company – by choice or not. We represent executives and professionals in negotiating IP rights in employment contracts, as part of an initial employment contract at time of hire, and in protecting IP rights as part of a severance. The concepts are common across industries - patent, work-for-hire, trademark, copyright - but each situation is unique. You need representation from experienced employment and IP counsel before something goes wrong.