Take care when drafting a contract

A good contract goes a long way. I use that axiom a lot in my practice. In good times and in bad, there’s no substitute for memorializing your agreements on paper – just in case. It’s generally good for accounting, risk management, and peace of mind. It’s also good for all the reasons I can’t think of: the unexpected is when a contract can provide a guiding light.

For example, there is a famous case out of New Orleans involving a Times-Picayune deliveryman who got into a car accident. The question for the court was the carrier an employee or independent contractor? He was an independent contractor, the court said, because he had all the elements of a sole proprietor who worked or himself—including a contract.

This month, the LPA released a “model” Freelance Contractor Agreement for your stringer reporters, photographers, and graphic designers. Chances are you don’t have a contract with many of your stringers. You should. It’s available on the members-only portion of the site (click here). Don’t hesitate to contact your counsel, or me, if you have any questions or concerns about what we have created as a “model.”

Whether you use LPA’s model contract or your own, the elements of a good contract are actually exactly what you would think they would be: the who, what, when, where and why of the deal. The terms are the law between the parties, as courts like to say. The signatories and those bound by the contract make sure the right person pays and the right person performs. The term and services performed ensure that you get the product you’re paying for. It can also ensure that you properly retain (or assign) intellectual property rights.

When relying on stringers or independent contractors to do work for your publications, it’s key that you remember a few important elements that distinguish an independent contractor from an employee. Independent contractors set their own hours, provide their own tools (like computers and notebooks), and control the work environment much more than employees. Independent contractors are paid by the piece, by the story, or by the project. Employees are, as you already know, either salaried or hourly.

It’s also important to have contracts with your key employees that include terms, conditions and requirements that you deem appropriate. Terms like non-compete agreements, venue clauses, and confidentiality requirements can be very important in the event of any inevitable separation.

With your employees and your independent contractors, your vendors and your advertisers, and even your lawyer(!), take my advice: a good contract goes a long way.