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.
O'Dell Restaurant Consulting's Blog 
i have a question though… i realize you were very thorough in your explanations, but your trying to sell contracts. i’m a chef leaving a restaraunt and i was wondering are my recipes indeed mine or the restaraunts? i have not signed any contract, none of the recipes are wrote down anywhere, some i could care less, some i would like to keep private incase i go back to the field. any thoughts? am i wrong? should i write them all out for them. i realize writing them out would be the nice thing to do, but i’m curious as to what i have to do. thanks in advance for any replies.
Good question. Unfortunately, I’m not the right person for the answer. At least not for an answer about the legal ownership. Its possible the restaurant has the legal rights to the recipes you created while in their employment regardless of a contract, like a drug company would have the legal right to a new drug you created while working for them, but I don’t have the legal expertise to say definatively.
From an ethical and professional standpoint, I think you absolutely have a responsibility to leave them with recipes. They were paying your salary not only to manage, but to create. Regardless of any contract, that is a normal and prudent job function of any executive chef. In my opinion, both of you have the right to keep and use the recipes unless you would have signed an agreement saying otherwise. Professionally speaking, a chef should always leave a restaurant in a position to succeed after they go. The last thing you want on your resume is a list of failed restaurants. You should want to leave a legacy of success. If the recipes you created while working for them are part of that success, then you should leave them copies of all the recipes. You should not however feel like you can’t also keep those recipes for your own use or to take to a future employer. Though an agreement could restrict that, you don’t have an agreement. Chances are, your new employer wouldn’t be a direct competitor with this one anyways and the old owner really shouldn’t care unless you were taking the recipes across the street.
To answer the question of legal ownership, you would have to consult with an attorney in your state. State laws are going to vary. Even if you leave them with the recipes, the food will never be the same. Technique, experience, and palate have a lot more to do with the success of a recipe than who is preparing it. Besides, you can always create more recipes. No recipe is worth a headache or a lawsuit.
I own a restaurant and my chef is unwilling to write down any of the recipes. I did not get into any legal contract when I hired him. What should I do now to protect my business?
You need to replace your chef. To properly run a restaurant, you need to know what your food is costing you to sell. That can’t be done without a recipe. To properly train employees, you need recipes. You can’t be held hostage by any employee. If your chef will not write down the recipes, find another chef. You wouldn’t keep paying a server who refused to fill out guest checks so you could charge them would you? No employee can be above the policies needed to properly run your business.
How much do I charge for each recipe? I have a few items that I do special but am willing to sell to the restaurant owner, since he would like to add to his menu. I ran these items as a special and they did really well.
Do you work at the restaurant? I have never heard of an employee charging a restaurant owner for recipes, so I have no basis for answering that question. You are getting paid your hourly rate while you are creating recipes, correct? Creating recipes, writing them, costing them, following them and teaching them to other employees is usually part of the job description for a chef or sous chef and should not require extra pay. If you are doing these things but only have the title of “cook” in your restaurant, maybe it’s time to discuss a promotion and pay raise with the owner.
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First of all and I will explain to you this from the legal point of view: the restaurant doesn’t own the recipes unless the Chef gives his written approval in a copyright based contract stating that he agrees for the recipes to become the property of the restaurant. It doesn’t matter if they are registered or not, it doesn’t matter if they are his own creations or not. It is the same with novels, poetry, translations etc.
The confidentiality clause is something you must have, but you cannot prevent a Chef from working for a competitor, because guess what: if he is still in the business he will be working for a competitor. So you cannot prevent him from working. Period. This is punishable by law as you cannot force someone to stop working. So unless you want to get a major lawsuit on your head that can cost you between 3 to 7 years and a huge fine I suggest you learn the law and actually put in a contract non abusive clauses, otherwise it will damage your business. So when you serve as a reference for others make sure you have the exact info.
I appreciate your input Alex, buy your information is simply wrong. Ownership of recipes does share some similarities to written works, but your statements about ownership rights of written works is inaccurate. If you are contracted by a publisher to produce books, poetry, etc, you are not the owner of those works unless you specifically contract for them, which would be very unusual. Most contracted written works are owned by the publisher, not the author. The same is true for research papers. When they are sold, the property rights go to the publisher and the writer no longer has the right to sell them to another publisher.
As for non-compete clause, your statements are too narrow and also inaccurate. You can prevent someone from working for a direct competitor in most states, though some states do not recognize non-compete clauses. To say they either “are” or “aren’t” enforceable shows a general lack of knowledge on the subject, and frankly you shouldn’t be instructing anyone on either subject and most certainly shouldn’t be admonishing others for something you obviously do not have the research or background to contradict on.
As for our contract, every owner is instructed to have their lawyer review and edit our contract because no contract fits every situation, and laws change from state to state.
I appreciate your input Alex, buy your information is simply wrong. Ownership of recipes does share some similarities to written works, but your statements about ownership rights of written works is inaccurate. If you are contracted by a publisher to produce books, poetry, etc, you are not the owner of those works unless you specifically contract for them, which would be very unusual. Most contracted written works are owned by the publisher, not the author. The same is true for research papers. When they are sold, the property rights go to the publisher and the writer no longer has the right to sell them to another publisher.
As for non-compete clause, your statements are too narrow and also inaccurate. You can prevent someone from working for a direct competitor in most states, though some states do not recognize non-compete clauses. To say they either “are” or “aren’t” enforceable shows a general lack of knowledge on the subject, and frankly you shouldn’t be instructing anyone on either subject and most certainly shouldn’t be admonishing others for something you obviously do not have the research or background to contradict on.
As for our contract, every owner is instructed to have their lawyer review and edit our contract because no contract fits every situation, and laws change from state to state.
If you did have the experience to be commenting on this subject, and critiquing the knowledge of others, you would know that and would know better than to make sweeping statements about what “is” legal or isn’t.
If there is NO employment contract, no NDA or confidentiality agreement, and no implied or expressed agreement by the Chef to waive his rights to his recipes when he leaves the employ of the restaurant owner, then the restaurateur cannot *legally prevent* the chef from taking his intellectual property (his recipes) with him and recreate them elsewhere. The problem is that restaurateurs are blatantly calling the Chef’s recipes and writings as their own without any legal instrument and advising chefs that they are now forever banned from recreating those recipes elsewhere.
That’s just not accurate Lily. I think your error is in automatically labeling the recipe “his recipe”. In some cases, the recipe may have come to the restaurant with the chef, and the chef maybe able to prove they are the owner of the recipe. If the recipe was developed while the chef worked for the restaurant, the person/business paying the chef can absolutely have sole property rights to that recipe if they have a contract, and possibly if they don’t, depending on the state. If the restaurant paid the chef to develop the recipe, they have a strong ownership argument with or without a contract. Using a contract is the safe approach though, and we recommend to anyone using one of our contracts to have it looked over by their attorney to make sure it is valid and enforceable in their state. We have dozens and dozens of law firms that have downloaded our contract template to use for their own clients.
I came into a position as chef at a new restaurant. I created everything in the recipe book and total menu for the restaurant. Due to mediocre management out front. The restaurant didn’t do well. Hell, there’s still not even a sign out front. 80% of the food is rung in open food so there is no way of tracking. Anyway, I was terminated because of no customers. Yeah, The chef. Could I ask that my recipes and menu items not be served in there again?
You can ask, but you won’t have much luck likely. If they were paying you while you were creating recipes, the recipes belong to them. Much like a scientist or an author who creates work while drawing pay. If they are all completed recipes you brought with you and didn’t do any of the work on their dime, you might have a point, but it’s still very easy for them to slightly change a recipe and call it their own. Most the time in this situation, it’s the restaurant that owns the recipes. On the bright side, if they didn’t have you sign an agreement saying they owned the exclusive rights to the recipes, you can also use them after you leave.
I don’t see a lot of protection for the chef in this…..I see it’s all about the employer.
In many situations it is the chef that brings much of the good stuff to an establishment, especially when he/she rescues a faltering enterprise. Something in all this does sit right with this chef……just saying.
Fair enough. This is an employment contract. It’s purpose is to help restaurant owners protect themselves. That’s what this entire blog and restaurant consulting service is in business for. To improve and protect restaurants.
That said, there is nothing punitive or “unfair” towards chefs in this contract unless they incorrectly believe that recipes they develop or implement while being paid are their sole property. That, I can’t help with.
“Company X was a small pastry factory. Mr.A was considered as a very experienced baker in factory. He had been working here from the date when company was found. In particular, he kept a own recipe of baking. This recipe created the famous brand for company. Company spent a lot of time finding another baker to replace A but it was impossible. Therefore, company realized that A was an irreplaceable person . Moreover, he did not agree to teach his own recipe for the other bakers in company.
Because he knew his importance, A seemed to have abuse of power. He gave himself authority to fire any workers if they did not follow him. Director of company knew that but he had to ignore Phương’s mistake intentionally. If he fired A, he could not find anyone like A and business of company would be slowed down. The brand that company had built for a long time would be collapsed. That was the reason why company had to live with A’s abuse of power.
The director reached retirement age. Ms.B was assigned to be new director. At once she realized A’s abuse of authority and decided to do something to reduce it. She also wanted to make a comfortable working environment for workers. However, finding someone to replace A was an impossible mission.”
What should Ms.B do in this situation? she cant fire Mr.B but she has to do something to reduce his authority, create comfortable enviroment for workers and still make sure the company still develop
pls give me advice.