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Old 03-25-2009, 08:14 PM
JL JL started this thread
 
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I have a friend who works for Consulting firm A. Consulting firm A has some kind of contract with it's Client A, that an employee of Consulting firm A cannot work for Client A unless he quits Consulting firm A for a year and thus can apply directly with Client A. Now, Consulting firm B also has Client A as its client. There is no contract between Consulting firm B and Client A that prohibits employees of Consulting firm B to get on board with Client A after working for a minimum 6 months.

Now, if my friend decides to quit Consulting firm A and finds a temp job for a few months and then applys and gets hired with Consulting firm B(has same Client A like Consulting firm A), is that legal? Also, why is it that there is no law that prohibits employers from barring current employees to work for a client or competitor as long as the employee served a minimum # of months, etc?Consulting firm A only says that you have to stay away from its client A for a year before reapplying, but i want to know if there is a law or statute that allows someone to apply directly to the client or competitor as long as he/she has worked an acceptable minimum length of months. BTW, my friend has been with Consulting firm A for about 2 yrs now and at the site of Client A for the same amount of time. In Texas, there is a "right to work for livelihood" statement, but not sure if that is a law or just talk.

Any thoughts on this? Thanks.

Last edited by JL; 03-25-2009 at 08:55 PM..
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Old 03-25-2009, 08:27 PM
 
Location: Pennsylvania
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The first paragraph is interesting - how clearly defined is the non-compete? If it is pretty vague, then it seems to me that you could make the case that you are working for Consulting Company B rather than Client A. I wonder if it would make a difference if you are an employee or an independent contractor for Company B. I'm sure there is legal precedence for this (but I don't know what it is).

As far as the second part, I'm not sure why a minimum number of months served would make a difference to Consulting Company A - whether you have worked for them for two months or two years, the principle behind the non-compete is the same - they don't want you cutting into their business.
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Old 03-25-2009, 08:51 PM
JL JL started this thread
 
8,387 posts, read 13,602,013 times
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Quote:
Originally Posted by maf763 View Post
The first paragraph is interesting - how clearly defined is the non-compete? If it is pretty vague, then it seems to me that you could make the case that you are working for Consulting Company B rather than Client A. I wonder if it would make a difference if you are an employee or an independent contractor for Company B. I'm sure there is legal precedence for this (but I don't know what it is).

As far as the second part, I'm not sure why a minimum number of months served would make a difference to Consulting Company A - whether you have worked for them for two months or two years, the principle behind the non-compete is the same - they don't want you cutting into their business.
He is a contractor for Client A but is an employee(medical benefits, PTO, etc) for Consulting firm A, so he won't be able to claim that he is working for Consulting firm B. From what i read, it says that he has to actually quit Consulting firm A for 1 year.

I agree with you on the 2nd part as far as the perspective of Consulting firm A, but i was trying to find out if there is a law/statute, etc that will allow a worker to leave his current company for a client or competitor after working for a certain length of time. Would it be fair if someone had worked for Consulting firm A for 5-6 yrs not be allowed to work for the client after all this? Obviously, someone who worked only a month or two jumping ship is not fair to Consulting firm A.
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Old 03-25-2009, 09:32 PM
 
2,364 posts, read 10,852,149 times
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Quote:
Originally Posted by JamesLang View Post
I have a friend who works for Consulting firm A. Consulting firm A has some kind of contract with it's Client A, that an employee of Consulting firm A cannot work for Client A unless he quits Consulting firm A for a year and thus can apply directly with Client A. Now, Consulting firm B also has Client A as its client. There is no contract between Consulting firm B and Client A that prohibits employees of Consulting firm B to get on board with Client A after working for a minimum 6 months.

Now, if my friend decides to quit Consulting firm A and finds a temp job for a few months and then applys and gets hired with Consulting firm B(has same Client A like Consulting firm A), is that legal? Also, why is it that there is no law that prohibits employers from barring current employees to work for a client or competitor as long as the employee served a minimum # of months, etc?Consulting firm A only says that you have to stay away from its client A for a year before reapplying, but i want to know if there is a law or statute that allows someone to apply directly to the client or competitor as long as he/she has worked an acceptable minimum length of months. BTW, my friend has been with Consulting firm A for about 2 yrs now and at the site of Client A for the same amount of time. In Texas, there is a "right to work for livelihood" statement, but not sure if that is a law or just talk.

Any thoughts on this? Thanks.

Hmmm Hard to read...sorry!

okay...if you mean:

1) the non-compete agreement doesn't kick in until a min. # of months,then
the more likely reason, is that a court of law or a reasonable jury would think that the employee had not worked for the company long enough to gain worthwhile company secrets or customers.
2)Yes, if you have not exceed the min. # of months..you can work whereever you want or get hired.
3) covenants not to compete protect the company from its employees taking its company secrets or customers to another company or setting themselves up in business.
4) there are 3 or 4 elements in a legal non-compete agreement and each state has its own ways of interpreting non-compete contract.
4a) there is duration...how long? You said 2 years, then there is distance? Could be city limits. And a couple of others, which i forget.

hope this helps!
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Old 03-26-2009, 01:07 PM
 
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Most non-competes can be walked right through in court but it depends on if the non-compete keeps someone from gaining employment. If your friend works in an industry in which there are other opportunities/companies to work for then most likely the non-compete will stand up but if it is something niche then they can probably get out of it. Talk to a labor lawyer.
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Old 04-23-2009, 01:45 PM
 
Location: NW San Antonio
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Medical benefits consulting? Non-compete in Texas has to have at least 3 things to stand up in court:
1 Consideration, what was he given to keep his non-compete in place?
2: Geographic area what range of area
3: Time frame, for how long is it in effect
without those 3 parameters fulfilled distinctly in the contract, the judge and the defendants' atty, your friend, will throw the contract outa court. Its illegal and unenforcable.
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Old 04-23-2009, 05:49 PM
 
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If a new employee than consideration can be the offer of employment!

But I like the poster who said his friends negotiated one years lump sum salary for not competing for one year!

If they terminate you through no fault of your own, then all bets are off, and will more than likely be unenforceable.
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Old 04-24-2009, 07:40 AM
 
378 posts, read 742,027 times
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Quote:
Originally Posted by JamesLang View Post
I have a friend who works for Consulting firm A. Consulting firm A has some kind of contract with it's Client A, that an employee of Consulting firm A cannot work for Client A unless he quits Consulting firm A for a year and thus can apply directly with Client A. Now, Consulting firm B also has Client A as its client. There is no contract between Consulting firm B and Client A that prohibits employees of Consulting firm B to get on board with Client A after working for a minimum 6 months.

Now, if my friend decides to quit Consulting firm A and finds a temp job for a few months and then applys and gets hired with Consulting firm B(has same Client A like Consulting firm A), is that legal? Also, why is it that there is no law that prohibits employers from barring current employees to work for a client or competitor as long as the employee served a minimum # of months, etc?Consulting firm A only says that you have to stay away from its client A for a year before reapplying, but i want to know if there is a law or statute that allows someone to apply directly to the client or competitor as long as he/she has worked an acceptable minimum length of months. BTW, my friend has been with Consulting firm A for about 2 yrs now and at the site of Client A for the same amount of time. In Texas, there is a "right to work for livelihood" statement, but not sure if that is a law or just talk.

Any thoughts on this? Thanks.
Just to get this situation straight, employee for consulting A wants to quit and work for consulting B with the SAME client, AFTER a few months? It may not fly. The contract does say a year. Personally, I would either wait a year to work for the same client or try to renegotiate with company A. If you break the contract, you can be sued. It has happened to a friend of mine. It was an expensive, stressful, and tedious time.

As a contractor, I'm very careful with non-competes. Please advice you friend to get some good legal advice.
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Old 04-24-2009, 09:17 AM
 
48,503 posts, read 92,736,009 times
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Quote:
Originally Posted by gea12345 View Post
If a new employee than consideration can be the offer of employment!

But I like the poster who said his friends negotiated one years lump sum salary for not competing for one year!

If they terminate you through no fault of your own, then all bets are off, and will more than likely be unenforceable.
In that case the whole contract would be unenforceable including the compete clause.
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Old 04-24-2009, 10:41 AM
 
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I am not sure what you are replying to? 1) the fact they were fired and the non-compete agreement became unenforcable or 2) the offer of employment is consideration.

hmm what contract?? You can be hired, and usually are without a contract and still sign a non-compete agreement. So, I don't know what you mean by "whole" contract. (Most employees are at-will employees)

Secondly, non-compete agreements are complete contracts, whether it takes up a half page or several pages.

Thirdly, this information is based on reading, people who write on this subject.

"The article said if the person quit, then non-compete agreement is more than likely enforceable depending on your state laws." And it said, "that if you are fired, then more than likely non-enforceable".

So, I dont' understand what you are quibbling with??

cheers!
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