Emergency Preparedness

Restrictive Covenants, But Not Too Restrictive

Digital Perceptions

Philadelphia Angels

Corrections or additions?

These articles by Kathleen McGinn Spring and Michele Alperin were

prepared for the March 21, 2001

edition of U.S. 1 Newspaper. All rights reserved.

Help Wanted: Backstage

New Jersey’s professional theaters, non-profits all,

compete for talent not only with film studios, but also with

businesses

of all kinds. Offering less dramatic salaries in many cases, but also

a level of passion that few for-profits can match, New Jersey’s

theaters

are seeking any number of good men and women. On Saturday, March 24,

at 10 a.m. the New Jersey Theater Alliance, the statewide association

of professional, not-for-profit theaters whose mission is promoting

and developing professional theater in the state, holds its 15th

annual

job fair at the State Theater on Livingston Avenue in New Brunswick.

Hoping to turn up technical, marketing, and administrative personnel

— but not actors, not this time — are more than 15 theaters,

including McCarter, the George Street Playhouse, the New Jersey

Shakespeare

Festival, and Passage Theater.

While everyone knows that theaters employ actors, and most

theater-goers

are vaguely aware of box office attendants, ushers, and lighting

technicians,

it takes many more specialties to keep the footlights bright.

Professional

fund raisers are increasingly important as ticket revenues typically

leave a 50 percent or more operating shortfall. Webmasters are in

demand too, and so are education directors, business managers, stage

managers, the company managers who are "responsible for the care

and feeding of actors," and the house managers who hire and

supervise

ushers and box office personnel.

"In this strong economy, it’s hard to find candidates," says

Wendy Liscow, NJTA’s director of programs and services.

Corporations

want the same marketing directors that theaters need, and most are

able to pay more. Jobs at the top — technical director,

development

director, and production manager — are now the hardest to fill.

Competition for skilled lighting technicians, master electricians,

carpenters, and costume designers is fierce too. It comes not only

from Hollywood, Liscow says, but also from industrial video houses.

Compounding competition from organizations with fatter hiring budgets,

she says, is the fact that "people are not being trained for the

theater."

Given a lack of formal training programs, theaters often nurture their

own talent. Starting out as an intern is often the route to top jobs,

and theaters taking part in the job fair will be looking for interns

as well as full-time, part-time, and seasonal employees.

Liscow, a graduate of the University of Michigan, where she studied

theater, began her career as an intern at the Playhouse in the Park

in Cincinnati. She then worked as executive director of the

Pennsylvania

Stage Company in Allentown. "I’ve been steadily working my way

east," she says. Her next stop was the George Street Playhouse,

where she worked for 12 years "doing everything I wanted to do,

working with wonderful artists on wonderful plays." She rose to

the position of associate artistic director there, and then, six

months

ago, joined the NJTA. Before working for the organization, which is

headed by Laura Aden, its executive director, Liscow served

on NJTA’s board.

Asked if she has ever thought of leaving the theater for a more

lucrative

career, Liscow says, "I would be liar if I said `never,’ but never

for long." She says she knows plenty of people who go to work

every day griping, but that her theater colleagues are not among them.

Professionals, or about-to-graduate college seniors, who love the

stage but never thought of the theater as a career will see a plethora

of choices at the job fair. Positions filled at previous NJTA job

fairs include group sales manager, sound engineer, lighting board

operator, carpenter, administrative assistant, production manager,

technical director, and costume designer. Pursuing one of these

careers

here in the Garden State is a good choice, says Liscow. For while

all the world may be a stage, few places offer more professional

theater

work than New Jersey.

— Kathleen McGinn Spring

Top Of Page
Emergency Preparedness

Flashback. It’s March 5, and the blizzard is not a

phantom

at all, but rather a barn-burying, wind-pushing monster. And, just

when the Weather Channel’s man in Manhattan, hanging on to a light

pole in an attempt to stay vertical, makes it official — we have

white out conditions! — the power goes out.

If you are responsible for managing apartment houses, office

buildings,

or condo developments, would you have been prepared?

Raymond Perkins, owner of the property management company Harbour

Management of Somers Point, where the phantom blizzard was expected

to raise multi-story waves, has been worrying about disasters of all

kinds since he left teaching in the early 1980s to manage residential

and commercial properties, and marinas too.

Perkins speaks on emergency preparedness on Tuesday, March 27, at

a conference and trade show of the Institute of Real Estate Management

that begins at noon at the National Conference Center at the Ramada

Inn in East Windsor. Cost: $85. Call 856-303-0190. Other speakers

address a variety of subjects of interest to property management

professionals,

including project management, loss prevention and risk, affordable

housing issues, recruitment and retention, and additional revenue

sources.

Perkins, whose worst brush with Mother Nature occurred during

Hurricane

Gloria in 1986, says property managers need to be ready not only for

the blizzards and hurricanes that are touted by the Weather Channel

for days before they occur (or don’t), but also for unscheduled

man-made

mayhem, perhaps a rampage by a disgruntled ex-employee. Among the

advice from this property management expert:

Make a detailed plan. "The main thing I’ve learned

is have a plan in writing somewhere on the property and with key

personnel,"

Perkins says. The plan should list names and emergency contact numbers

for building tenants, notes on anyone who needs special assistance,

physical characteristics of the property, insurance policy numbers,

names and numbers for utility companies, and phone numbers for

emergency

services. When disaster strikes, Perkins says, there will be no time

to look for this vital information.

Drill the plan. "It’s one thing to have a plan, but

the plan needs to be drilled and constantly updated," says

Perkins.

"People change, properties change, codes change." At least

once a year, he says, the property manager should assemble a team

and go through emergency procedures. The team could include on-site

personnel, workers from other sites, key tenants, emergency services

professionals, and perhaps representatives from the Red Cross or

similar

agencies.

Document the disaster. "When you sit down two or three

days later, you won’t remember what happened," Perkins says. This

is especially true if the disaster included injuries or death.

Nevertheless,

it is important that the property manager be able to give a clear

account to the owner, the insurance company, and perhaps to police

or a court of law. Take notes or make a recording to create a record

of what happened, and of what you did. Included could be the time

the fire department arrived, the time calls were placed for a

restoration

service, and a list of tenants and when they were notified.

Check for code compliance. Before a disaster strikes,

property managers would do well to check federal, state, and local

building codes, and to make sure their properties are in compliance.

Perkins says a breach could result in denial of insurance claims.

Following Perkins’ advice should produce some measure of peace

of mind the next time we are said to be directly in the path of a

storm capable of crushing roofs and barricading fire engines in their

stations.

Top Of Page
Restrictive Covenants, But Not Too Restrictive

Companies looking to protect their businesses from

future

competition commonly ask new recruits to sign restrictive covenants.

Yet potential employees often resent and even refuse to sign these

covenants, because they perceive the limitations on their future

activities

as too wide-ranging. As a result, covenants are becoming much more

specific, as employers seek to protect their own legitimate business

interests without infringing on a potential employee’s freedom of

action.

Because restrictive covenants can affect a business’ ability to

compete

for qualified employees, their implications should be understood by

high-level managers and executives — not just by corporate

lawyers.

Steven Berlin, Beth Cole, and Shacara Boone, all

of Buchanan Ingersoll, speak on "Covenants Not to Compete in New

Jersey" on Wednesday, March 28, at 8:30 a.m. at the Ramada Inn

in East Brunswick at a seminar sponsored by Lorman Education Services.

Cost: $239. Call 715-833-3940.

Restrictive covenants specifically limit the ability of employees

or former employees to compete with an employer, solicit current,

former, or even potential customers, solicit or hire co-employees

or colleagues or former colleagues, or utilize and disclose what their

employer or former employer considers to be confidential information

Restricted covenants have always existed, mostly in service and sales

industries, says Berlin. "An employer does not want to pay an

individual to build relationships and develop a business," he

explains, "only for that individual to leave, take the fruits

of the employer’s investment, and compete directly against the

employer."

In the past several years, restricted covenants have become more

popular

as companies seek to protect huge investments in the development of

technology-based products or systems and in businesses that are

technology-based.

Once employees learn the technology that an employer has developed

or its unique applications in a particular niche, they can become

a competitive danger. In the face of employees’ growing technical

knowledge, "there is a great effort to protect place and position

in the market," says Berlin.

Yet employers must exercise great care in writing restrictive

covenants.

In addition to balancing their own legitimate business interests with

an employee’s right to earn a living, they must consider the

likelihood

of a court’s enforcing the covenant. The following steps are important

when writing a covenant:

Determine the legitimate business interests of the

employer .

A restrictive covenant that focuses on specific and realistic

interests

is more likely to stand up in court. Before writing a covenant, an

employer should specify exactly what needs protecting. "Employers

want to protect everything about how they do business," says

Berlin,

including intellectual property, technology, what the company does

and how, secrets and formulas, pricing mechanisms, contacts, and

business

processes. Yet when a covenant defines an employer’s interests too

broadly, the courts will be unlikely to enforce it.

It’s better to look at the business, and be specific in what needs

to be protected — and for how long. For example, an employer may

have developed a sales force for a particular product and spent

considerable

time developing contacts and forming relationships with customers.

To protect the employer’s specific interests, a covenant would limit

a sales person from selling to the company’s customers for a period

of time.

Avoid being over-inclusive in projecting future business

plans . Consider a company that today sells widgets, but tomorrow

expects to be selling gaskets. A broadly-formulated covenant,

specifying

that "a former employee would be precluded from competing directly

or indirectly with the business of the company," might protect

a potential gasket business but might not be enforceable. A narrower,

more effective approach would be to preclude the employee from going

to work for another widget company for a specified time period.

Consider the changes brought by technology. "The law

is evolving because circumstances are changing," Berlin says.

If the current technology will be obsolete in six months, courts may

not view a longer restrictive covenant as protecting the company’s

legitimate business interests. Says Berlin: "Whatever a particular

employee may know that can be protected may not be relevant in six

months."

Analyze what a particular employee does now and is likely

to do in the future . "An employee’s involvement with a company

and its business may be very narrow," says Berlin. He raises the

example of a public relations and marketing manager for a widgets

company who is looking for a career change. If the employee goes to

work for another widget company in a different capacity, for example,

human resources, the employee’s previous knowledge would not impose

a risk.

Protect the employee’s ability to earn a living. Courts

do not favor restrictions or limitations on an individual’s ability

to go out and earn a living, and covenants are enforced only to the

extent necessary to protect legitimate business interests.

Ensure that a covenant does not become an obstacle to

effective

recruitment . "Employees used to blindly sign restrictive

covenants,"

says Berlin, but today they are becoming more sophisticated, and the

signing of a covenant has become a subject of negotiation in the

recruitment

process. He believes that although employees are uncomfortable with

limitations on future activities, there is usually some version they

will agree to.

Consider geographic vulnerability. Because courts in

different

states and countries variously interpret the general principles and

rules about restrictive covenants, a company must be aware of where

it is competitively vulnerable and in what jurisdictions it needs

to be protected.

Evaluate a court’s likely response. "Courts will

evaluate

whether a limitation is too broadly drafted — in terms of nature,

time period, and geographic scope — in determining whether to

enforce it," says Berlin. In New Jersey, courts have the option

of performing a "blue pencil revision." They can redraft

limits

that they consider broader than necessary to protect legitimate

business

interests. "The greater the umbrella of activities that might

be restricted," says Berlin, "the greater the risk that a

court is either not going to enforce a covenant because it is so

broad,

or is going to rewrite it in a way in which it was not intended."

Berlin graduated in 1977 from the University of Maryland at

College Park with a bachelor’s in journalism. Since receiving a law

degree from the Brooklyn Law School in 1980, he has been practicing

law in New York and New Jersey. Berlin is a New Jersey certified civil

trial attorney and has handled commercial litigation and resolution

of business disputes. For most of the past decade, a significant

portion

of his practice has been focused on employment law. He has been with

Buchanan Ingersoll since September, 1998.

Whereas the tendency of employers is towards broad-based

non-competition

agreements, says Berlin, these are often not sufficiently specific

to be enforceable by the courts, and they may draw resistance from

potential employees. After careful analysis of risks and benefits,

businesses will need to draft covenants that are narrow enough to

be enforceable, yet not so narrow as to provide insufficient

protection.

The process is an art, not a science.

— Michele Alperin

Top Of Page
Digital Perceptions

Some men pretending to be women in conversations on

the Internet feel a show of aggressive behavior adds to the appeal

of their borrowed female personas. The same men have concluded that

aggressive behavior by their real-life, male selves is a turn off

to women. This is one phenomenon Sherry Turkle examines in her

book "Life on the Screen: Identity in the Age of the

Internet."

Hailed as a leading student of social interaction on the Internet,

Turkle argues that the medium is having a profound effect on the wider

culture.

On Wednesday, March 28, at 4:30 p.m. Turkle speaks on "Intimate

Machines: Human Identity and `Affective Computing,’" at Wolfensohn

Hall on the campus of the Institute for Advanced Study.

Also the author of "The Second Self: Computers and the Human

Spirit,"

Turkle is a professor of science, technology, and society at MIT.

A graduate of Radcliffe College, she studied with the Committee on

Social Thought at the University of Chicago, and earned a doctorate

from Harvard.

Top Of Page
Philadelphia Angels

On Tuesday, April 24, more than 150 angel investors

will meet at the Union League in Philadelphia to listen to

entrepreneurs

pitch their business concepts. Entrepreneurs who want to grab the

angels’ ears need to submit summaries of their business plans by this

Wednesday, March 21. Mail the plans to Angel Venture Forum, c/o

Success

Start, 260 Forest Hills Circle, Devon, PA 19333, or E-mail them to

submit@ppig.com, re: Angel Venture Fair.

The third annual Venture Forum is being hosted by the Pennsylvania

Private Investors Group. Also participating are the Private Investors

Network of Washington, D.C., Loosely Organized Retired Executives,

a Philadelphia-based group, the Central Pennsylvania Angel Network,

and Tri-State Ventures.

In the two previous years the event was held, angels in attendance

funded five companies with a total of $4 million. Angel investors

can obtain further information from the Pennsylvania Private Investor

Group at www.ppig.com.


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