“Gardening Leave” Should Not Involve Lunching or Other Social Activities with Your Former Colleagues

While the term “gardening leave” or “garden leave” is thought to be an English import to the New World, some U.S. fund managers and other financial institutions have been using gardening leave provisions in their employment agreements in all but a name.  Under a “gardening leave” clause the employee is required to give the employer a certain notice prior to departure from the firm following which the employee is placed on a salaried leave of absence and is forbidden to work for competitors and to engage in certain other activities.  The name for this contractual device originates in the idea that the employee is paid to stay at home and tend to a garden rather than engage in a conduct the employer might find objectionable.  One basic distinction between gardening leave provisions and restrictive covenants following separation is that the terminated employee (whether by his or her own volition or by the employer) technically remains in an employment status during the period of the leave and continues to be compensated as before but is subject to greatly reduced (if not completely eliminated) job duties and lack of access to the employer’s offices, facilities, and personnel.

A case involving just this kind of clause is currently pending before the London High Court.  The employee in that case is Fahim Imam-Sadeque, the former head of sales for the UK, Middle East and Australia for BlueBay Asset Management, one of Europe’s largest specialist managers of fixed-income credit and alternative products, managing assets of more than £24billion.  Mr. Imam-Sadeque reportedly left the firm in December 2011 after having signed an agreement that was said to contain a gardening leave for a period of six months from the date he gave notice in July 2011 after he had accepted an offer to join a competitor, Goldbridge Capital Partners, as head of sales and marketing from January 2012.  As a reward for staying home in his English garden, during the term of the leave he was entitled to continued salary and to other compensation, including fund shares worth £1.7million.  While he continued to be a BlueBay employee, he was subject to a range of the common restrictive covenants, such as non-competition, non-solicitation and non-poaching.  It is the latter restriction that Mr. Imam-Sadeque reportedly violated in the course of having lunch with a current BlueBay employee, Damian Nixon, whom he sought out in a number of emails.

While we do not know what actually transpired during this December lunch, BlueBay clearly interpreted it as more than an exchange of season’s greetings and refused to turn over the accrued compensation, including deferred fund shares to Mr. Imam-Sadeque, claiming a breach  of the anti-poaching provisions of his contract.  BlueBay also claimed Mr. Imam-Sadeque had allowed Goldbridge to issue inaccurate and misleading references to himself and other BlueBay staff, with Goldbridge saying he no longer worked for BlueBay when he did so.  Not surprisingly, Mr. Imam-Sadeque has brought suit against BlueBay claiming that he did nothing wrong by having lunch with Mr. Nixon, and that BlueBay is wrongfully withholding his deferred compensation.

The lesson of this pending case, regardless of its outcome, which is more likely than not will turn on the employer’s ability to secure Mr. Nixon’s (its current employee) cooperation as a witness, is that gardening leaves serve a useful purpose for both the employer and the employee but should not be abused by either.  Employers can obtain a stronger legal protection by way of restrictive covenants when they continue paying the departing employee and in exchange get the privilege of counting him or her as a current (if not active) employee during the term of the leave because most legal challenges to the validity and enforceability of such restrictive covenants lose their potency precisely due to continued consideration being paid by the employer and the unambiguous employment status of the departing employee.  Furthermore, gardening leaves can offer greater protection against misappropriation of the employer’s confidential information and trade secrets because employees on leave are effectively kept away from the most current information, being denied access to the employer’s offices, files or networks as well as its employees, suppliers, customers, investors, and other counter-parties and as current employees are generally subject to greater control by the employer than former employees.  Employees also benefit by having a paid leave with full insurance coverage and often other benefits once they serve a termination notice on their employer before they completely sever the ties with the old employer and get to start with a new employer (or a new career in gardening or elsewhere).

However, once either party overreaches, the bargain of certainty and predictability is lost, and the courts are liable to step in with their own vision of what is just and fair in a given fact pattern.  U.K. courts have generally enforced gardening leave provisions with both injunctions against prohibited employee conduct and by upholding the employer’s right to withhold contractual compensation in the event of a material breach by the employee.  A typical U.K. Service Agreement for investment fund professionals and managers uses a fairly broad language for its anti-poaching clause of the garden leave provisions, such as:

“The Employee covenants with the Company that the Employee will not directly or indirectly on Employee’s own account or on behalf of or in conjunction with any person for a period of __ months after the Termination Date induce or attempt to induce any employee to whom this paragraph applies to leave the employment of the Company (whether or not this would be a breach of contract by such employee).”

It may also be possible to use more specific language prohibiting any contact by the employee who gave termination notice with any of the employer’s employees, directors, officers, investors, customers, suppliers, and service providers, re-defining the employee’s duties and obligations and so on.  It is unknown at this point whether the BlueBay employment agreement in question contained such language, but conceivably even the less-specific language reproduced above may subject the former employee to liability when sufficient evidence is introduced as to his or her attempts to poach the company’s employees or to violate the no-contact provisions of the contract.  What is clear is that any employee who voluntarily signs a contract with such provisions should steer clear of the employer’s business and employees until the gardening leave is over to protect his or her entitlement to deferred compensation and to avoid litigation.

In the U.S., gardening leave clauses are used more rarely than in the U.K. and almost exclusively with executive management and professional positions, including those in the financial services industry.  They are sometimes called “sitting out” clauses.  As in the U.K., courts in the U.S. generally find them valid and enforceable because the continued compensation dispenses with the challenge based on the lack of a “safety net” for the employee and gardening leave provisions are therefore a safer bet for the employer than pure post-separation restrictive covenants where no additional compensation is paid to the severed employee.  However, the reasonableness test still applies, and the period of the leave as well as the need for and the scope of the employer’s protection may still be scrutinized by a court.  U.S. employers rarely go beyond the 6 months term, and 2-3 months terms are more typical.  In addition, a number of cases raise special concerns with the availability of specific performance to enforce the garden leave which provides for some limited services to be continued to be performed for the benefit of the former employer during the transitional period (as opposed to an injunction against an employee who accepts an employment offer from a competitor and attempts to commence new employment during the period of the garden leave) as an involuntary servitude.  Money damages (including a setoff of deferred compensation) are much less controversial as a legal remedy and should serve as sufficient deterrent against potential violations on the part of competitors and former employees alike.  New York courts consistently rejected plaintiffs’ arguments that the employment exclusion effect of properly drafted garden leaves may make it difficult to resume work due to lost skills.  In addition, the scale of compensation typically granted hedge fund and private equity fund executives makes it very difficult for the executives in between jobs to get the sympathy of a judge or a jury in the absence of a truly despicable conduct on the part of the employer.

It should be remembered that there has been limited guidance from U.S. courts on the pure U.K.-style gardening leave provisions, and U.S. employers should exercise caution in including such provisions into U.S. employment or separation agreements and seek advice of U.S. counsel on their effect under local state law.  We have been involved in preparation, negotiation and litigation of such agreements on behalf of both hedge and private equity fund employers and their employees and would be pleased to assist you with your legal needs in this area.

Avoid the Urge to Overreach in Restrictive Covenants in Employment Agreements

A recent (September 2011) New York case, Novus Partners v. Vainchenker, illustrates the difficulty of enforcing overly broad restrictive covenants in the employment context relevant to hedge funds and other private fund entities.  In this case, an employee of a hedge fund research company left to work for a competitor and was promptly accused by his former employer of violating confidentiality, non-competition and non-solicitation clauses of his employment agreement among other claims.  After suing both the ex-employee and his new employer (who was sent a notice apprising it of its new employee’s breach of contract), the plaintiff was faced with a challenge from the defendants by way of a motion to dismiss that attacked the legal sufficiency of the agreements signed by the ex-employee.

As we all know, employers like to protect themselves against this very situation with what they view as “iron-clad” contractual provisions that they offer to employees as part of their employment package and that employees (short of very few executive-level employees) tend not to negotiate.  Which is all well and good.  We certainly encourage our employer clients to arm themselves with the appropriately-drafted restrictive covenants at every stage of interaction with employees, independent contractors and service providers (normally when they enter into employment or service agreements and, upon termination, in separation or termination agreements).  However, care must be taken not to have our defensive instincts get the better of us.  New York courts, as well as courts in other states, scrutinize restrictive covenants when they are being used against former employees and may refuse to enforce them when they are seen as overly broad, unreasonable or (probably rare in the investment fund industry given the scale of typical compensation packages) unconscionable.  

Failure to follow the basic principles may make it more difficult (read expensive) to enforce these covenants or may make them completely unenforceable.  In fact, the latter is what happened in this case, where on a motion to dismiss the plaintiff (former employer) was ordered to re-plead one of its claims for the sin of seeking to enforce an overly broad non-solicitation clause related to the employer’s clients. 

So the lessons of this case for the investment fund industry employers can be summed up as follows:

  1. Geographic limitations not crucial in the context of investment management industry.   These are not terribly relevant for the alternative investments industry, which is spread widely across the major financial centers of the globe.    Most of the successful challenges to these have to do with the duration (the 1 year term here was not viewed by this court as excessive) and with the scope (apparently the nature of the hedge fund research services offered by the former employer here was sufficiently specialized not to cause offence).
  2. Scope of non-solicitation limited to clients directly known to ex-employee.  With respect to the language of the non-solicitation clause the judge held that the clause must be limited to those clients of the former employer with whom the defendant ex-employee had some contact in his prior job.  While we do not advise to limit non-solicitation clauses so that they only prohibit solicitation of those clients with whom the employee has had a business relationship in every instance, the given employee’s direct exposure to the employer’s clients and the nature of the client list should be consider.  In this case, the judge noted that the ex-employee never had much of an exposure to many of his former employer’s clients.  The judge also stated that the restriction as drafted would effectively prevent the ex-employee from soliciting any of the hedge funds for the fear of unwittingly violating this clause.  On the other hand, the court found the defendant ex-employee’s effort to induce another employee of the plaintiff employer to leave and go work at his new employer a clear violation of the non-solicitation clause. 
  3. Broad confidentiality language subject to scrutiny.  While the benefit of a well-drafted confidentiality clause is clear in this context the plaintiff employer did face a challenge from the ex-employee (and the court) related to the over-broad language of the NDA in question.  This issue comes up quite often in our practice when we try to convince our (employer) clients to be reasonable when it comes to the scope of what constitutes confidential information to be protected against disclosure and/or misuse by their employees.  The simple reason for being cautious here is that when it comes to matching facts of the case to the contractual obligation you don’t want to be arguing that just because everything you deem confidential deserves to be protected b.  For example, while the judge here allowed the claim based on the confidentiality clause to proceed, the court spoke derisively of the extent of protection afforded to client lists when a business’s customers can be easily determined.  Proprietary software, on the other hand, was easily classifiable as a trade secret and deserving of legal protection.    

The reason for the additional scrutiny given to these restrictive covenants is that in ruling on these claims a variety of equitable considerations come into play.   The key to a smooth and cost-efficient enforcement lies in customizing these clauses to the specific circumstances of each employer’s business and each employee’s position.  Using a balanced approach in drafting restrictive covenants serves to deprive former employees of the ability to challenge their validity as a tactic to delaying or avoiding enforcement.  This is one situation where employers should not be using “one size fits all” standard form agreements.  As counsel to both employers and employees in the private fund industry we regularly negotiate restrictive covenants in the employment context and review them for potential employers considering a hire subject to these restrictions.  After all, given the entrepreneurial spirit in this industry, employees of the yesteryear often become future employers and so the cycle of relying on the enforceability of restrictive covenants to protect one’s business continues.