Rights to recipes

In my opinion, yes you are correct on that issue. However, not trying to be harsh, but whose fault is that he didn't do his job, as envisioned by you, on that issue. Detailed written job descriptions and follow through to ensure that duties are being complied with and completed fall in your lap as owner.

I know that doesn't help you in this particular situation, but hopefully you will be better prepared for the next time you hire a chef. I have never taken well to being held hostage, so I would probably refuse to pay him any additional money above his current pay. Personally I think right to and anything close to resembling magic secret recipes are a load of crap anyway.

I have always freely given away any recipe without worry or concern. It is impossible to steal my creativity. I can always come up with something else. I like to operate on the principal of sharing.

If possible, save physical samples of the current recipes and when you get a new chef, if they are worth their salt, they should be able to replicate.

A cooking forum is not generally a good place for legal advice.  In terms of expressly NOT LEGAL ADVICE nuggets of general knowledge: 

1.  The question of who owns rights of any sort to complete, current written recipes is complicated by the fact that they don't exist.  Unfortunately for you, that's the sort of thing even judges and arbitrators notice.

2.  If you want to negotiate another contract you're free to do so.   He's free to ask a ridiculous price.  If he doesn't work for what you want to pay, oh well.  There's no slavery anymore.  You can't force someone to work on your terms.

3.  You have whatever rights to complete, current written recipes your contract gave you.  Since it's pretty clear the subject wasn't covered in your oral or written agreements, you have NO rights.  Furthermore, you've set the value of the complete, current written recipes as his hourly rate times the amount of time it would (or should) take him to write them down.  So even if you could arbitrate or litigate and prevail, (a) you still wouldn't get the recipes (no slavery, remember); and (b) you're reimbursement would probably be limited to something like $20/hr X 6 hrs.  If I were arbitrating the dispute, that's how I'd compensate in the unlikely event I found in your favor. 

4.  Had you asked for complete, current, written recipes earlier in your relationship, you could have fired him for refusing to comply.  You can still fire him for his refusal, but it won't do you much good.   Your only leverage is as a future employment reference.

5.  Be like Satyr Budweiser.  Don't let this happen again.  Next time stay on top of what's going on in the kitchen.  It's not the chef's fault if you don't.

6.  Finally, take heart.  Unless you're food is wildly original and idiosyncratic, chances are that "recreating" recipes as good as what you have will neither be particularly difficult nor expensive.  Try and get someone competent to at least taste everything before your current guy leaves.  Better still if you can pay him (the old guy) to stay another few days and train.

7.  Don't ask for legal advice on a cooking forum.

8.  I mean it.  Don't ask for legal advice on a cooking forum.

Too soon we get old.  Too late we get smart.

BDL

OK. So here are two(2) examples of cookbooks made directly of the restaurant recipes. I don't at all think Thomas Keller has any concern if anyone uses his recipes. After having worked in The French Laundry for a while my reply would be "good luck with that".  At all the places that I've worked it's been never a problem with recipes. Basically you can just have at it when I'm gone. I can't think of any good chef I've known that just uses someone else's recipe without thier own tweeks thrown in. I guess I'd even call it complimentary for a chef to use my recipes. Don't worry about it. If you're doing good business you'll continue doing good business. Improvise, adapt, overcome. 

There's not a snowballs chance in a hot oven that I'd ever write proprietary recipes on a normal hourly rate.

Just because I may work for you you don't hold title to my creative thought unless we have an employment contract that details my obligations.  I expect you already know that would have meant a larger salary for the Chef and legal fees to draft the agreement.

At some point once you became a viable entity you should have negotiated with your Chef to write a SOP manual including recipes that would be your property as well as a no compete covenant.

The chances of your Chef staying on a few extra days and training a new Chef when he/she is trying to extort $200 per recipe is probably nill.

IMO you are both being unreasonable.

It is unrealistic to expect some one to perform as a contract employee with out the contract or salary to match.

It is unrealistic for the Chef to demand such a sum unless your recipes are exceptionally unique.

I'd either try to meet in the middle on a severance package but under no circumstances would I pay even five bucks with out a rock solid no-compete covenant and a contract your advisers put together so you know you have all your Ducks in a row.

Personally I would have sent him packing the minute he asked for $6400.

Dave

Well said.

Continuing in the "Not Legal Advice" vein, the Pfizer example, probably isn't the best here.  Unless Pfizer has a clause in their contract (employment or independent contractor) that specifies that all IP developed on the job or with their resources belongs to them (they most assuredly do), it most likely belongs to the "inventor".  That is the general "default option" for IP.  You are in good company here.  You would be amazed at the number of companies that discover this later, to their chagrin.  Many people assume, wrongly, that if you hire someone to do something for you, you automatically own any IP associated with or that is the product of their work (like hiring someone to write some software).  The general rule is that the author or inventor owns the rights unless you specifically contract otherwise. Of course this is a bit overly simplistic and there are exceptions.  Which is why this is not legal advice.

So, the take away here is that when you hire your next chef, get a lawyer and contract up front as to these rights and then enforce them along the way, not when he or she is about to go out the door.  Not much you can do with the current chef except to try and negotiate a more reasonable fee if you really want/need the recipes. 
 

LOL. Sweet-Lov'a-Jebus!

Our profession aint'e rocket surgery ... we work in kitchens. 

Quote:

Originally Posted by IceMan 

LOL. Sweet-Lov'a-Jebus!

 

Our profession aint'e rocket surgery ... we work in kitchens.

^^^^^^^^ This!!!  If you as an owner don't have the info/recipes, know how or staff to cover the slack then shame on you, what do you do on the Chef's nights off?

What happens if he gets sick?

Goes on Vacation?

What if he just up and quit?

These are real questions that you should be able to answer.  Do you have a Sous Chef?  Does he know the recipes and techniques?  If so it looks like you have your replacement.  If not it looks like you're going to be out $200 a recipe.

57K in DC?  No thanks. I'm in the greater Detroit area and the pay scale and cost of living here is far lower than DC. I was paying skilled cooks $15 an hour here 10 years ago.

That's well below the average wage for a Chef in your area let alone expecting recipe develpment and ownership etc.

I'm no longer surprised that your Chef wants that price for his/her recipes.

I'd suggest you pay him what he is asking with the agreement that he will sign a no-compete covenant and train his replacement for a week at his current salary.  I'd also suggest you find and use a law firm to handle employment contracts for your key employees in the future.

Dave

The "slavery comment" is not "over the top."  Reread and think it through.  It's compelled work which makes for "slavery," not the compensation. In case of a breach of contract suit regarding an agreement to perform a service, the "damages" are money and not performance of the service.  Why?  Neither you or a court can force someone to do anything they don't want no matter how much you pay or offer to pay.  

Regarding another point...  Under almost any conceivable employment agreement, unless the topic was specifically covered, a restaurant could fire "for cause" any chef for refusing to supply the recipes currently used by the restaurant -- no matter who developed them.  That sort of communication is an implied part of employment agreements, even if the contract is oral and "at will."  Of course, as I said, the employer and employee are free to agree that it's not a part of the job -- but unless and until they do, it is.  As for the chef, NO unemployment compensation and GOOD LUCK finding the next job without a reference.

Recipes are not IP (intellectual property) at least not in the sense they can be copyrighted.   However, under some circumstances, they're "trade secrets" and the restaurant can take steps to see that they're not shared.  The recipe information -- such as it is -- belongs to the restaurant.  If the restaurant fails to guard their trade secrets, even to the point of keeping track of them for itself, that's the restaurant's problem.  

BDL

Quote:

Originally Posted by brfarr11 

Under what circumstances, if any, have you Ever been paid out for recipes developed and used daily as core business dishes -- developed and tweaked/refined all while getting paid, not while at home/off work etc.  ?   if so, what were you paid out? what rate? 

I have been working in the industry got 38 years. I have never been paid above and beyond whatever my pay rate of the particular moment was for recipe development and implementation.

Quote:

Originally Posted by brfarr11 

Also - I found several recipes that were documented, and given to me by the same chef -- doesn't that strengthen the expectation that we had an understanding -orally, that the recipies were mine to know/own..  

So fire him. You had an expectation, but did nothing to see that it was met, so while you are at it; fire yourself as well.

A business developed primarily around one person is not built upon a very solid foundation. Business is about survival of the fittest. The natural selection process weeds out the weaker.

Around the time of my father's death, I was the working chef/owner of a restaurant. I was able to be 3,000 miles away from that business for a period of 30 days because of a solid foundation. My business survived and even flourished during that time.

That in itself was a valuable lesson. It showed me that no one is indispensable, even myself, a great ego check if there ever was one. But the double edged sword swung back to show me that I must be good at what I do, because I had built a solid foundation that allowed my business to weather this storm.

Don't mean to hijack the direction of this thread but a very sore point in a former restaurant owner was triggered by this. Unfortunately, if a person is fired they can collect unemployment. I once caught a person stealing from me. Fired them on the spot. They were able to collect unemployment. EDD told me when I complained, I CAUGHT THEM RED HANDED FOR GOD"S SAKE!!!, that I could have reported the incident to the police. Big whoop, so their checks would have been mailed to the jail instead of their home?

Please excuse my rant, I now return control of your screens to the previous direction. Thank you.

Quote:

Originally Posted by cheflayne 

 Unfortunately, if a person is fired they can collect unemployment. I once caught a person stealing from me. Fired them on the spot. They were able to collect unemployment.

It's a RPITA but IIR you can appeal the decision for them to get UE. When I catch some one stealing I don't worry about that. In most other cases I try very hard to make them not want to work for me. If they quit......

NO UE for you!

Let some one go for not giving you a recipe and IME they surely would be getting UE if they wanted to persue that.

Dave

I'm having a Brain fart here................

Every place that I've worked at pretty much insisted that all dishes be costed out.  In order to cost it out, you need to know the ingredients and their weights.  This information was paid for, and is the property of the owners.  Owner's have the right to set menu prices, but need to know the food cost.  Kinda makes sense....

The whole thing is kinda stupid.  Unless it's a McD's, every Chef (the one running the kitchen) has a different way of doing things.  You know the old saying, give 10 cooks the same recipe, and you will  have 10 different results.   

As the ex-Chef did give notice, you had ample time to find a replacement.  This is the opportune time to re-do the menu.  Guess/fudge at the dishes you want to keep, and develop the rest of the menu.

First, let me apologize for being so general about unemployment benefits that my remarks were misleading and/or confusing.

Not as "legal advice" or an expression of the law, but just as a nugget of general information gained from long experience in the California workplace:  Either the EDD was shining you or there was something else going on.  While some minor "for cause" reasons, e.g., chronic lateness or insubordination are not grounds to deny unemployment, gross misconduct, which definitely includes stealing, is.  The determination as to whether the cause was incidental or gross belongs to the local EDD.  On the other hand an EDD office might reasonably decide that stealing something minor -- a six pack of beer say -- was not sufficiently gross to deny benefits.  Why your EDD office ignored you, I have no idea.  I also have no idea if you had any recourse regarding their poor decision.

Also, worth noting that a great many States are not as easy about unemployment benefits as California.  Different places are... well... different.

Combining ignorance of the actual rules along with a little, shall we say "anecdotal experience," is just one reason seeking legal advice on a cooking forum might be counter-productive.  

In any case, the OP is free to refuse to provide a reference and/or to include the "chef's" refusal to cooperate.  In this economy, that could be a problem.  To be clear though, I'm not saying the OP should get even, but use what resources he has as leverage for the recipes. 

BDL

Quote:

Originally Posted by boar_d_laze 
 gross misconduct, which definitely includes stealing, is.  The determination as to whether the cause was incidental or gross belongs to the local EDD. 

They told me that stealing didn't constitute gross misconduct. Flabbergasted I asked what the hey exactly constituted gross misconduct then. They didn't really have a cut and dried answer. It happened a long time ago and i have pretty much tried to expunge the incident from my memory banks, but i believe they hinted at physical altercations and or actions.

In my experience, employers have no chance with the EDD. I had another issue concerning an employees final pay check. I was very much aware of the labor codes and statutes and made sure to follow the letter of the law in regards to their final paycheck. They phoned to say they would be in to pick up their check. I had it ready and waiting. They came in the middle of the lunch rush but still got their check no problem. They took me to the labor board saying that I made them wait to receive their check. At the hearing, I was basically told that I was guilty until proven innocent. I showed them a copy of the dated cancelled check. I was told that I could have written any date that I wanted on the check, it proved nothing in their eyes. To cut to the chase, I couldn't prove that I hadn't made the former employee wait. I wound up paying penalties that amounted to 3x the amount of the final paycheck. Yeah, I love the EDD.

 As an employer you can contest and should always pursue that (IMO) with an employee that was let go for cause especially in state where the presumption for an initial ruling is always in favor in the employee. If you have appropriate documentation you certainly have a chance but IME it's a toss as to how it's going to turn in that quagmire of inconsistency.

It is a pain but there's no way I'd kick back and have my insurance costs rise over some one getting compensation that should not.

The Labor board is completely separate issue and I've never had any issues there but I'm a stickler for documentation.

Dave

I am stubborn and hard headed (and those are my good points LOL) so I have never gone quietly screaming into the night when dealing with the EDD. As to documentation for " not making someone wait", well after that incident, I went so far as to have a witness to when I wrote a final paycheck and put it in a sealed addressed envelope (which they initialed) and to sign and date documentation to that end. I then would immediately go the post office and send the check by certified mail/return receipt. I didn't care if the employee said they would come and pick up the check or whatever, that was my procedure and they were informed as such.

It is funny now, but when I opened my restaurant I was foolish enough to have no written policies, documentation, paperwork, etc. I thought would we would be above all that. One small happy family. Well by the end 12 years later, the pendulum had swung completely to the other direction. I had learned my lesson. I had documentation out the wazoo. I had documents to document my documents.

Quote:

Originally Posted by cheflayne 

I am stubborn and hard headed (and those are my good points LOL)

 I think those are required traits for surviving in this field. Experience can be a brutal teacher and the inconsistency with some of these topics is frustrating for sure.

Dave

Quote:

Originally Posted by DuckFat 

 I think those are required traits for surviving in this field.

Ain't that the truth!!!

Quote:

Originally Posted by cheflayne 

 I had documentation out the wazoo. I had documents to document my documents.

That one gave me a good laugh. 

I'm curious. I'm not sayin', I'm just sayin'. How many people here really think they have true "proprietary recipes"? 

So brfarr did you get your answer?

Should we all compensate the family of the person who invented Casear salad?

Quote:

Originally Posted by IceMan 

How many people here really think they have true "proprietary recipes"? 

Do you know the recipe for Coke or KFC's secret? It's a long list of companies that have proprietary recipes and SOP manuals for trademark dish's and their not all giant corporations. There are M&P's that guard those recipes like the family jewels.  Any one can make fried chicken. Not every one can do it exactly the same. I think there are those who fail to understand the difference between a working Chef, An executive Chef and a corporate Chef not only in regards to duties but salary.

Dave

Wonderful post DuckFat. Nowhere near answering the question. If John Pemberton or Harland Sanders were members here I'd ask them all about thier products.   I'll ask my question again, "How many people here really think they have true "proprietary recipes"?".   I don't want to know the recipe. I'm curious what the recipes may be for, but I don't want the exact recipe. Every big-name famous hot-shot worldly-acclaimed has a cookbook of their recipes. Do you think any of them are worried or concerned about their "proprietary recipes"?

In my industry (technical writing), the default is that anything I create on the clock belongs to the company and fits into the Work for Hire part of Copyright. I suspect that will become the norm for the culinary world eventually.

Quote:

Originally Posted by IceMan 

"How many people here really think they have true "proprietary recipes"?"

I'm sure I'm not the only one here that has proprietary recipes as well as trade secrets in the form of SOP manuals etc. so I'd venture a guess a lot more than you might think.

Do you really think every Chef that's ever written a cook book is giving away every thing they know?   I fail to see the correlation between a cook book and a proprietary recipe or trade secret in relation to this thread.

Dave

Brfarr: I am in NoVa so now you've piqued my curiosity!  What restaurant is yours, if you don't mind my asking? 

Now, on to the substance of the post.  While I will provide the same disclaimer as other posters that THIS IS NOT LEGAL ADVICE, I am an attorney here in the area.  No, I'm not an intellectual property attorney, and no, I don't have a lick of experience in this particular area of law.  That being said, this set of circustances presents some fairly general principles of law that are part of most lawyers' general knowledge base. 

So, the whole "slavery" thing.  What BDL was referring to (I think) is the concept of specific performance.  When someone has breached a contract you can usually request specific performance of that contract as a remedy in addition to damages.  For example, we contract for you to sell me a house, and you breach, I can generally ask the court to force you to sell me that house.  However, you cannot ask for specific performance on services, or employment contracts.  This is actually less because of a notion of not forcing someone to do something they don't want to do; courts force people to do things they don't want to all the time!  It's more because the person being forced is likely to under-perform out of spite, thus thwarting the goals of the process.  I will add this, however, if you were to win on a hypothetical breach of contract action for his failure to provide these recipes, the measure of damages may not be limited to the $20/hr for 6 hours you said you'd be comfortable paying.  Instead, I'd argue that your measure of damages is either (a) the replacement cost of those recipes (how much you'd have to pay another chef to reverse engineer the recipes and/or create suitable replacements); or (b) the amount of financial loss your business suffers as a result of the breach (lost revenue because you don't have those same dishes on your menu).  The latter is much more difficult, if not impossible, to prove but it's theoretically an option.

BUT...

It sounds like the practice of documenting recipes was not outlined in the written contract regardless, so another question presents itself.  Was this expectation communicated to him clearly enough to satisfy whatever generalized language the contract does include? If so, then you may have an argument that he breached by not doing it all along.  So, it's not his failure to cough up the recipes now that is the breach, its the fact that he didn't do it throughout.  You are likely not inclined to take him to court over it, but if you explain it to him that way, it helps to support your argument for how he should be compensated.  You're not "buying" the recipes from him, he's just catching up on a backlog of work he should have done already. 

BUT...

That brings up the IP issue.  Even if he did write them down all along (of for the ones he did write down) who do the recipes belong to?  I will admit that I do not know whether one can protect recipes through copyright or patent law (someone referenced Coke and KFC, but that is trade secret which is different) but it has been said on this thread that recipes are not copyrightable or patentable and that sounds about right.  It makes sense that you are not breaking any law if you are able to successfully reverse engineer a recipe, and moreover, I feel like if this were possible we'd hear about this litigation all the time and we don't.  So let's assume that you can't protect recipes with copyright or patent (I know, we're not supposed to assume, but that's also why I said THIS IS NOT LEGAL ADVICE :) ).  If that is the case, then he's not selling you anything because there isn't anything to sell; you can't sell something you don't own.  For what it's worth, if this is true that also means that language in the contract regarding ownership of recipes developed during a chef's employment wouldn't have any purpose or effect.  A non-compete may accomplish this goal, but I'd question the enforceability of a non-compete that was tied to specific recipes.

So, aside from being long winded as us lawyers are prone to do, what is the sum up?  You probably can't force him to write these recipes for you, even if you were to avail yourself of the courts and/or arbitration.  You may be able to recover some measure of damages from him, but only if you can point to his failure to have written these recipes down in the past as a breach of your mutual agreement of the terms of his employment.  There is probably no ownership over these recipes as a matter of law, so his notion of you "buying" them from him sort of goes out the window.  This leaves you with a simple disagreement over how much he should be paid for the time it would take to write these down - if it's 6 hours, then you think it should be $23.75 per hour, and he thinks it should be $1,066.67 per hour...just a small discrepancy.  So, your options are to (a) try to convince him to write them down for you.  To this end, you could mention the possibility of litigation or arbitration, but it is never advisable to make an empty threat so only do this if you're serious about it; (b) actually litigate - this one doesn't seem to make sense cause it's not likely youd get out of it spending less than $6,400 in legal bills if he's willing to go all 12 rounds with you; or (c) suck up your pride and "purchase" the recipes from him.  If you select (c) you can likely negotiate him down to a much smaller number than his initial asking price, and you can contractually try to prevent him from using them in the future.  Even though our foregoing analysis says you can't do that with recipes, if he wants to treat them like IP, then he should take the bad with the good.  Something like when Kramer sold his stories to J. Peterman.   

Phew!  Sorry if that was much more information than anybody reading this thread ever wanted.  I suppose I was glad to be able to give a little back to a forum where I rarely have more than questions and am often in awe of the vast amounts of cooking knowledge out there which I could not likely amass in multiple lifetimes!