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What to consider when hiring an employee

Whether you’re a photographer hiring a post-production assistant, a caterer hiring a sous chef, or a designer bringing in someone to do the books, there are several issues to consider when hiring an employee for your creative enterprise.

Use a written agreement

If you are hiring any person to do any type of work for you or your creative enterprise, you should have a written agreement with that person. At a minimum, the contract should specify the broad duties expected of the employee, the employee’s compensation, and the employee’s employment status. Typically, assistants to creative entrepreneurs are hired as independent contractors, which means that it is up to the employee and not the employer to pay required taxes and comply with other legal obligations. An employee’s employment status also determines whether or not he or she is eligible for paid overtime and sick leave.

Use the words “work-made-for-hire”

Every creative enterprise hiring an employee should make certain that the written contract contains language that any work that an employee creates or contributes to pursuant to the employee’s job are works-made-for-hire belonging to the employer. Work-made-for-hire provisions are crucial to ensuring that the employer, and not the employee, is considered the author of a work and owns all rights, title, and interest to the various copyrights. Without a work-made-for-hire provision, an employee who contributes to the creation of a copyrighted work may be entitled to be considered a joint author or part owner of the work and its copyrights.

Further, simply writing the words “work-made-for-hire” may not be enough. If you are not using a work-made-for-hire agreement drafted by a competent copyright attorney, that agreement may not be valid or enforceable.

Include a provision on confidentiality and nondisclosure

An employment agreement should protect the creative enterprise’s confidential information, intellectual property, and trade secrets. If you don’t want your assistant to tweet or “instagram” the details of your creative projects, the employment contract should include language prohibiting the employee from doing so.

Consider whether a non-compete provision would be appropriate and/or enforceable

Non-compete laws, i.e., the ability of an employer to restrict the actions of a former employee once the employment relationship ends, vary by state. For example, in California, non-compete clauses are generally not enforceable except in specific circumstances. But that is the general rule, and as with all legal issues, there are exceptions. A lawyer who understands the relevant employment laws in your state will be able to advise you on how best to keep your former employee from directly competing with you based on knowledge or information they acquire while working for you.

Keep a copy of the executed agreement

This one speaks for itself.

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