Nondisclosure and noncompete agreements: some practical advice

Remember back when the only contract you had with a customer was your word of honor? Recall that time in the nebulous past when word-of-mouth meant someone recommended you (as a reliable translator, accountant, electrician, publisher, typographer, designer, etc.) and you got a new customer’s ear to start working on a new project?

Translators: Remember those days when all you had to sign was a one- or two-page agreement with a translation agency?

The more complex the organization, more paperwork has to be read, signed and dated. Having been in the marketplace as an independent professional and an employee translator for several software companies since the late 1990s, I’ve learned a thing or two about agreements, what to sign, what to return unsigned for clarification, and when to dispute a restrictive clause. When I wrote a weekly column for a Lakeland newspaper in 2004-2005, I was required to sign an agreement with the actual owner of the newspaper (a large New York-based company with the word TIME on it). The agreement basically took all my intellectual rights away in exchange for the paltry sum I was going to get paid. I challenged the highly restrictive language —after all, it meant, in part, that I couldn’t use my columns on other publications, websites, books or media. However, I had to relent because I was told that it was a standard agreement. My priority was to get published, not to challenge a point.

In large companies, signing nondisclosure agreements (NDAs) is par for the course because any employee working on a product (even writing translations for a product or service) may come in contact with privileged, confidential or proprietary information. Trade secrets have to be safeguarded, the logic goes. If you are an independent contractor, you might fear not signing everything that the company is forwarding you because you think you’d lose the client. Some companies have a right to impose highly restrictive NDAs. I once worked for a translation company specializing in clinical trial documentation; having been recommended by an esteemed colleague, I was in and started working for them in less than a month. One of the conditions, however, was that I was never to disclose the name of the company in any way. Since this particular limitation did not restrict my earning power or jeopardize my intellectual rights, I signed it.

I have worked with dozens of translation agencies over the years, and I have developed a kind of yardstick to gauge for which I would consider signing any agreement at all. Basically, the more paperwork a translation agency gives you to sign, the warier you should be. I mean, why the paranoia on the part of the agency? Why lawyering up to a professional translator or interpreter? If you have been burned by a motormouth translator who gave away confidential information or by an interpreter who tweeted key case data, the solution is not to add more restrictive operational clauses to your agreement, but to choose your translators and intepreters more wisely.

Another sticky issue is that of noncompete clauses. I remember signing a couple of agreements with translation agencies where a noncompete clause was included. In short, I was not to pursue business with the agency’s clients for 12 or more months after the agreement’s termination. I didn’t see the harm in signing on such clause, but reading comments from fellow translators about this kind of language gave me pause. Several colleagues had pointed out the unenforceability of noncompete clauses.

A recent article published in The Wall Street Journal (June 15, 2016, B8 section) shed some much-needed light on the matter. Publishing company Law360 and the New York Attorney General’s office reached a settlement under which noncompete provisions should be removed from employment contracts.

noncompete agreements quote 1

Similar situations are taking place elsewhere (see quote about sandwich chain Jimmy John’s below). Even the White House has expressed an opinion. These precedents are highly relevant to practicing translators, proofreaders, technical writers, graphic designers, interpreters and other so-called knowledge workers. Remember that noncompete clauses and nondisclosure agreements are just some of the many aspects in a contractual relationship with a customer or employer. You are encouraged to do due diligence, learn the main legal concepts and terms involved, read an agreement before signing it, ask sensible questions, challenge any clauses you disagree with and, if necessary, walk away.

noncompete agreements quote 2

Translation educators should also take part in the discussion. Along with the requisite business skills that any professional should cultivate, the legal knowledge necessary to navigate through these and other agreements and contracts is essential to nurture a professional image and foster genuine cooperation with your customers.

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Filed under Confidentiality of information, Customer relationship, Fairness in agreements, NDA, Noncompete clauses, Punitive clauses

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