sábado, 10 de septiembre de 2016

Trump campaign contract has unusually broad non-compete clause

Republican Presidential candidate Donald Trump addresses a crowd of supporters on July 27, in Scranton, Pa.

The Trump campaign's standard employment contract prohibits contractors--and even the contractors' employees--from working for Hillary Clinton.

Under the terms of the contract, a copy of which was included in a complaint that a liberal advocacy group filed Sept. 2 with the NLRB, Trump campaign employees, independent contractors and volunteers must “promise and agree not to assist or counsel, directly or indirectly, for compensation or as a volunteer, any person that is a candidate or exploring candidacy for president of the United States other than Mr. Trump.”

The agreement also directs campaign contractors to "prevent your employees from doing so."

Mark Braden, former chief counsel of the Republican National Committee, said it wasn't unusual for presidential candidates to require certain employees to sign a document pledging not to work for their opponents. But he said the blanket prohibition against contractors' employees working for rival campaigns was a departure from the norm. "I can't imagine language like that," he said.

Charlie Spies, a veteran Republican campaign lawyer agreed. "Extending the non-compete restriction to contractors’ employees is unusual," he said, "and at a minimum raises questions of enforceability."

The language of the employment contract appears to be copied largely from one used by the Trump Organization, judging from its puzzling repeated references to "the company" rather than "the campaign." The contract was included in an NLRB filing by the Committee to Preserve the Religious Right to Organize, a liberal group that alleges the campaign’s non-compete provision and confidentiality agreement violate federal employment law.

In effect, the Trump campaign's employment contract prevents Trump campaign workers, contractors, and the contractors' employees from working for the presidential candidacies of Hillary Clinton, Jill Stein, or Gary Johnson. During the primary season, the campaign's non-compete clause used broader language prohibiting paid or unpaid work for "any person that is a candidate or is exploring candidacy for federal or state office other than Mr. Trump." The Daily Dot reported on that language in March, and BuzzFeed posted a copy in July. BuzzFeed got its copy from an arbitration proceeding in which Trump accused a former campaign consultant of leaking confidential information. The parties reached a private settlement.

The non-compete clause in the version of the contract in the NLRB complaint expires Nov. 8, or, “if earlier, the date Mr. Trump announces that he will not run or will no longer run for the Presidency of the United States of America in the current U.S. presidential election cycle.” It isn't clear when this contract language was drafted, clouding the question of whether Trump ever contemplated a withdrawal from the race after his nomination.

The employment contract also includes a mandatory arbitration clause similar to one used by Fox News. The Fox clause became an issue in Gretchen Carlson's sexual harassment lawsuit against former Fox News Chairman Roger Ailes, which Fox recently settled for $20 million. Critics of the network contended that Fox News used its mandatory arbitration clause to keep secret multiple allegations that Ailes sexually harassed his female employees. The Trump provision says “any dispute arising under or relating to this agreement may, at the sole discretion of each Trump person, be submitted to binding arbitration in the State of New York.” The A.P. reported on the arbitration clause in June.

News outlets have reported previously on the scope of the Trump campaign’s confidentiality agreement. The contract’s definition of confidential information includes taxes, financial statements, contracts, schedules, appointments, meetings, conversations, and notes of “Mr. Trump, any family member, any Trump Company or any Family Member Company.”

“Family member,” according to the contract, encompasses Trump’s children and “their respective spouses, children and grandchildren, if any, and Mr. Trump’s siblings and their respective spouses and children, if any.”

Braden said that extending a non-disparagement clause beyond Trump's campaigns to his companies and affiliates, and extending the prohibition indefinitely, was highly unusual. “I have never seen or heard of anybody making that request in a contract," he said.

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