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Old 10-06-2015, 06:46 PM   #21
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I know this won't help, but this is a very common occurrence in the business world, and there's a lot of litigation on the record about non-compete contracts. In most cases, previous employers don't feel the risk is worth the reward.

Litigation just opens up counter suits--for issues like unpaid overtime, women working without breaks, unpaid vacation . . . . . . . . .

It's an example why signing non-compete clauses for low or mid level employees should be avoided except in the most rare of cases. I don't know that they're enforceable except at highest levels of employees.
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Old 10-06-2015, 06:47 PM   #22
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When I had my employment agreement reviewed by counsel he told me that mine, and most employment agreements, are not worth the paper that they are written on so her former employer may have an uphill battle.

I think a first step might be to have a discussion with new employer's in-house counsel if they have some. While I agree with TP that technically the new employer isn't involved because they are not party to the contract, they may be outraged enough to give her some help. (I would be and if I was CEO of new employer I would ask our lawyer take care of those clowns for her and use outside counsel if necessary).

She's likely to prevail since she is not working for a competitor. I assume that given the descriptions of the businesses that there are no common customers.... if that is the case then they are not competitors so any allegations of violating the non-compete are senseless. She may also want to discuss with her counsel the possibility of threatening a counterclaim for harassment and for frivolous litigation if they do initiate an action.
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Old 10-06-2015, 07:08 PM   #23
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.... She may also want to discuss with her counsel the possibility of threatening a counterclaim for harassment and for frivolous litigation if they do initiate an action.
Yes! If the info in the OP is accurate, she should have nothing to worry about (but still needs legal counsel to navigate this mess).

Get a lawyer, then relax as much as that is possible. I'd bet they are just blowing smoke (but it's the kind of smoke you need legal representation for, for better/worse).

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Old 10-06-2015, 07:16 PM   #24
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Sometimes the best defense is a good offense.
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Old 10-06-2015, 07:18 PM   #25
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There are times when you need an expert lawyer at your back, and this is definitely one of them.
Unless the competitor is a direct competitor or included in a list of specific competitors, the clause about not working for another company is usually unenforceable. No court will enforce a contract that prevents the ex-employee from being able to earn a livelihood by working for any company at all.

As for poaching former customers or having possession of any of former employers lists or documents, this is a serious charge and can have serious consequences. Get legal counsel. She probably also needs to let her current employer know her old employer is threatening a harassing lawsuit. Vindictive former employers have been known to file baseless lawsuits just to harass ex-employees, but it's rare as it is an expensive pastime. How sure is she that she hasn't been signing up her ex-employers customers. She will need to defend each and every instance. Legal counsel is necessary.

Her lawyer will be able to advise if countersuing is wise. Using the legal system to harass ex-employees should be punished and if there really is no merit to the original suit, judges tend to throw the book at them.
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Old 10-06-2015, 08:35 PM   #26
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Where I used to work this came up not infrequently, and the company's legal office would handle it on behalf of the new employee. I'd certainly talk to them first if it could result in not having to pay out of pocket. Worst that could happen is they say "Sorry, you're on your own."
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Old 10-06-2015, 09:30 PM   #27
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Dog, if you must go all mother bear, don't get caught doing anything rash. Remember to breathe, that's very important.

That said, this kind of stuff really grinds my gears. Good luck to your family.
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Old 10-06-2015, 10:11 PM   #28
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I would bring that communication to my boss's attention right away and then decide about talking to a lawyer on my own. Tell her it's a compliment that former company sees her as a threat.
+1

Bring it to her boss attention, who knows, they could at least recommend
a good attorney
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Old 10-06-2015, 11:09 PM   #29
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Dog, I hope your daughter retained a "bull dog" of an attorney, the best employment lawyer around.

Not sure about telling her current employer. She is probably the best judge of whether or not she wants her current employer involved.

If things are as you say, one good detailed and threatening letter from her attorney should do it. (including potential counter claims if they exist)

As another said, the best defense is a better offense.

Let us know how this turns out.
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Old 10-06-2015, 11:10 PM   #30
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I'd also drop a dime to the state's labor department about them not making payroll. Everytime they sent me a letter or pushed the issue in any way, I'd contact the labor department about another offense. Assuming you have the proof (bank statements, copies of checks, paystubs etc)...

Sucks, sounds like the old company is a bunch of turd balls. And bullies who like to manipulate their employees...
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Old 10-06-2015, 11:13 PM   #31
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I'm not sure working for a competitor is enforceable - you have to be able to make a living. We have noncompetes as well but they don't prohibit you from working.

It is enforceable within limits... that is why you need a lawyer...
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Old 10-07-2015, 01:20 AM   #32
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I did not read all the responses... first.. get a lawyer, fast!
By your descriptions, I'm not sure the 2 companies don't play in some of the same areas. As for company lists... you don't need a written list to be in the wrong. It is too easy to remember who you've used before without thinking about it.

Get a lawyer familiar with this part of the law

Figure out if DD signed something with the new employer that says she has no remembrances... like this agreement. This is what they are looking for. She could be in trouble with them. It is best to work these out when you get a new job, not after. You can put them at risk... which will put her more at risk potentially.

I hate to say this... use this as a learning experience with DD... know what you sign. I had these where my previous company
Quote:
owned all the inventions and improvements for 1 year following my employment if they related to anything the company was working on. talking mega company here.
Didn't matter if I had worked on it at the previous company... or that I got laid off (facility closure)

The other thing to note, all things in these agreements may not be enforceable. Get a lawyer.

I have seen companies not hire people until these agreements were worked out.

All my employers had these agreements. Some narrowed the context of them to a somewhat limited area. But most would prevent you from going to someone they saw as a competitor.
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Old 10-07-2015, 01:42 AM   #33
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Definitely need a lawyer. Since they've included the new employer, needs to be brought to their attention.

My nonlegal opinion is that a restrictive covenant for low paying job is not enforceable. The two year period for not working for competitor is also excessive given her pay.

I'm worried that she might have access to list of some type. Or they have proof.

It does sound like the companies are in the same business.
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Old 10-07-2015, 02:04 AM   #34
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Definitely need a lawyer. Since they've included the new employer, needs to be brought to their attention.

My nonlegal opinion is that a restrictive covenant for low paying job is not enforceable. The two year period for not working for competitor is also excessive given her pay.

I'm worried that she might have access to list of some type. Or they have proof.

It does sound like the companies are in the same business.
The term "low pay" is not really well defined (or I missed it). Was she salary or hourly. If salary, did DD have the rights afforded a salary (exempt) employee? (most don't). Did they (old company) check the hours she worked? Some companies like to have exempt employees because they don't have to pay overtime. From the OP description, I assume DD was exempt... but bad to assume.

OP look at this
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Should My Daughter Seek Legal Counsel?
Old 10-07-2015, 05:53 AM   #35
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Should My Daughter Seek Legal Counsel?

1. No serious lawyer communicates with an email.. A touch of harassment is all it is. Under no circumstances respond in anyway.
2. Talk to a lawyer ...you'll sleep better.
3. I believe non competes are difficult to enforce..
4. Inform the boss


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Old 10-07-2015, 07:31 AM   #36
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it is enforceable within limits [in most, but not all, states]... That is why you need a lawyer...
ftfy.
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Old 10-07-2015, 09:21 AM   #37
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ftfy.
No problem... but I would think that would be within limits....


It also matters (again, in some states) if you were paid for that non-compete.... When I was doing trustee work there was a company that would buy up small businesses in many states... almost all of the agreements would have a price for the business... a salary for the main person for a few years and a non-compete section where they were paid... the payments were between $100K and $1 million.... and these were 10 year non-competes....
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Old 10-07-2015, 09:22 AM   #38
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It is enforceable within limits... that is why you need a lawyer...
if ours said we couldn't work for a competitor I wouldn't sign it - no one else would either
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Old 10-07-2015, 09:25 AM   #39
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3. I believe non competes are difficult to enforce..
no, the part about not soliciting clients and/or former co-workers is easy to enforce, we take that very seriously
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Old 10-07-2015, 09:39 AM   #40
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