A popular topic lately in a couple different restaurant discussion forums I participate in is the question of who owns the recipes your restaurant uses?
Let’s look at a couple possible scenarios that could affect your restaurant.
- Your executive chef or kitchen manager quits. Maybe one or two members of the kitchen staff leave with her/him. Your chef keeps extensive recipes written down in a book they’ve had since long before they worked for you.
- You fired your executive chef and there are no written recipes. Everything comes from the head of the executive chef or the cooks he/she trains.
- Your chef leaves your restaurant for a bigger, better opportunity. It’s a benevolent departure. No animosity.
What happens next in any of these scenarios? Do the recipes the chef has written down belong to the restaurant? Does the restaurant get them when the chef leaves? If there are no recipes, can the restaurant make the chef create them before the chef leaves so the restaurant can continue to produce the same food? Are any of the cooks trained enough to recreate the recipes the chef used to make? Is this cook even going to stay when the chef is gone?
No matter the answers to any of these questions, it is very important for the continued success of your restaurant that you are able to consistently produce the same quality of product, tasting the same as before, if you want to keep the loyal customers you have. If the food was horrible, maybe you want to change all the recipes, but you’ll still want to pay attention to the rest of this article to avoid potential pitfalls with the next chef.
All this begs the question, “Can your restaurant survive the departure of your head chef or kitchen manager?”
In addition to helping you evaluate your current situation and the risk you already have if your head chef leaves, I’m also going to help you take the steps to lower your risk and remove the impending doom of losing your top chef.
What are the risks if my chef leaves?
If you are unfortunate enough to lose your executive chef, whether it be a termination, the chef quitting, or the chef moving on to a better opportunity, there are several potential problems they could leave you with and several considerations you may have never made.
- Recipes can be copyrighted, but copyrighting doesn’t keep someone else from using the same formula or recreating the same food. It may only protect any unique methods or systems of creating the food. In effect, you may not be able to keep a chef from reusing the recipes you use at a restaurant down the street just by copyrighting the recipes.
- The chef may consider the recipes they create as their own intellectual property. If they were created while working for you, doesn’t that make them your property? Does a researcher for Pfizer get to keep the cure for cancer if they create it while working for Pfizer? “Who owns my recipes?”
- A chef you have fired or who quits, even one who leaves under good terms, may not feel compelled to leave you with the recipes created while they were working for you.
- A chef you have fired or who quits may think it’s a good idea to go to work for one of your competitors and make the same food you serve to hurt your business.
- A chef or cook who leaves your restaurant may think it’s a good idea to start their own restaurant using the recipes they learned at your restaurant.
- The chef takes half your kitchen staff with her/him, including everyone who knows how to make your recipes.
- The chef takes their recipe book with them which are the only written copies of the recipes to your food.
- You’re left without a chef and without recipes. You are in a state of desperation while having to negotiate employment with the next chef you hire.
Any one of these problems could do some serious damage to your restaurant. It’s best to consider these issues before hiring your chef and create an employment contract that protects the quality and consistency of the food you serve. Without that quality and consistency, your restaurant is at great risk to fail.
Now that you know it’s very important to protect yourself from these potential problems, and I’ve told you that an employment contract can help, you’re lead to your next question, “What should be included in a good chef employment contract?”
Here are what I consider to be “must haves” in any chef employment contract. Many of these you will want to include in an employment contract for all your cooks, your General Manager and any other key management staff that have access to your proprietary secrets.
- A statement of duties, as in a job description. Usually an addendum to an employment contract, a job description helps you define in writing what is expected of the chef or other employee. The job description should be acknowledged and signed by the employee so you have proof the employee was aware of their duties.
- The job description MUST include “creating and recording recipes in a recipe book owned exclusively by the restaurant” as one of the duties.
- Intellectual property. This statement declares that any work done by the chef or other employee, recipes or operational tools created, procedures, etc. are the property of the restaurant and remain the property of the restaurant upon termination of employment. The employee is being paid by you to create for you. The creation remains your property just as it would if you commissioned a piece of art or hired a researcher to find a cure for cancer.
- Conflict of interest statement. For full time, key employees, you will want a statement in their contract saying that while under your employment, they cannot hold another job or engage in any business or activity that conflicts with the interests of your restaurant. This is not a reasonable expectation for part time employees in my opinion though. If you are not providing enough hours so that the employee does not need another job, you should not try to prevent them from having one. Your employees have to eat too.
- Confidentiality agreement. This statement in your employment contract forbids the employee from divulging any of your proprietary secrets to anyone else. These secrets include recipes, financial information, operations tools and manuals, policies, vendor agreements, training practices, technology, food and service methods, techniques, processes, studies and any and all records kept by the restaurant or any of it’s employees. This statement specifically helps you prevent your chef or cooks from taking your recipes or procedures down the street to your competitor.
- Surrender of company documents. Upong separation of employment, this statement requires that the employee surrender any and all documents and property belonging to the restaurant, including recipes, checklists, operating tools, manuals, agreements, and any document whether printed or digital that was created on the clock while working for the company or was provided by the company to the employee.
- New employer notification. This states that you reserve the right to contact the employee’s new employer to divulge to them the terms of the employee’s employment contract with you. This is meant to help you let the new employer know that their new hire is under contract not to divulge your proprietary secrets, procedures and recipes.
- Non-compete agreement. The greatest risk of a good employee leaving is that they will go to a direct competitor and try to compete with you. A non-compete agreement helps you prevent them from doing just that. A non-compete should state that an employee can not work for, consult with or own interest in a similar business in your market. Basically that they can’t compete with you. A non-compete cannot keep an employee from making a living however. If you create a non-compete that tries to prevent an employee from performing any job even remotely similar to the one they held with you, you may have trouble enforcing it. Laws regarding non-competes vary from state to state and your ability to enforce yours may vary greatly from a restaurant in another state. In reality though, you are not trying to prevent your chef from finding a job somewhere else. You are trying to prevent them from taking your trade secrets and competing against you with them. A non-compete normally contains a time limit. 24 months is customary for most non-competes.
- Employee solicitation statement. This statement forbids an existing employee from soliciting your other employees to work for them. This includes not only a direct job offer, but any sort of enticement, encouragement or pressure of any sort.
There are several other statements you should include to create a good contract. Make sure to use a qualified lawyer experienced with labor law and restaurants when creating any contract of any sort. I am not a lawyer and you shouldn’t consider this article legal advice. What this is however, is a good place to start when trying to protect proprietary information like recipes.
Until you have an employment contract in place, and a job description letting a chef know they are creating recipes for you that you will own, you are at the mercy of their ethics. A great chef knows that they are only as good as they left their last kitchen. They should have the moral drive to set any kitchen they run up for success long after they are gone. They shouldn’t try to steal employees or hide recipes. After all, a great chef can recreate a recipe anytime they wish, and there’s a never ending supply of recipes inside a great chef’s brain. You can’t depend on every chef you hire being a great chef however. You need to protect yourself and create an atmosphere that benefits not only your chef, but every employee in the kitchen.
Use employment contracts. Use job descriptions. Create and maintain up-to-date recipes on all your menu items, including the specials. Make sure you have copies too. Don’t be held hostage by any one employee. Create an atmosphere where chefs will be beating down your door to work in your organized, well run operation, just for the opportunity to express their own creativity. For the opportunity to work for a successful brand, and to have the freedom of creating to their hearts content because you’re not holding them back from insecurity that they may some day move on to bigger and better things. After all, if you hired a great chef, they will eventually move on to bigger and better things.
For help writing an employment contract for your chef or cooks, visit our webstore and look for our Employment Contract for Chefs and Cooks. This same contract can be amended to use for any employee.
Brandon O’Dell is an independent restaurant consultant who assists small to medium sized independent restaurants and small chains create the operational systems their chain competitors use everyday. Visit www.bodellconsulting.com for more information, or visit their blog at blog.bodellconsulting.com.