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My wife and I own a nurse staffing agency. Our main client

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My wife and I own a nurse staffing agency. Our main client is a home care nursing agency that she used to work for as a independent contractor. They having been our client for a little over a year. My wife signed a non compete contract with the company 3 years ago as a I.C. and does fill in for nurses from time to time but doesnt get paid directly from the client. She is interested in taking on a former patient of the client although it may violate the non compete. The contract states that she cant solicate patients of the client until a year after she left employment. Since she hasnt gotten paid from the client for over a year because all checks from the client has our business name on them is she still bound by the non compete. The patient is dying and the family was unhappy with the staff at the clients main office so they left. They want my wife to be the primary nurse in the last few weeks the patients have although she is terrified to get sued.
Submitted: 5 years ago.
Category: Business Law
Expert:  INFOLAWYER replied 5 years ago.
The issue of the non compete and payment are independent.   One cannot use the lack of payment to violate the non compete. If money is owed, the recourse is a lawsuit and complaint to the state labor dept.

A non compete is not favored by courts and often not enforced. It has to be narrow and limited, meaning reasonable as to time, space and scope.

So for example, one for 5 years without ranging all over the city or worse without any space limit wont be enforced but one for a limited radius for a year is more likely to be.


Practically, employers often dont sue given the cost of litigation and likelihood of losing. They will be more likely to sue and seek lost profits and injunction if you take clients.

If possible, consider getting the employer to waive the non compete. many will do it.   


Customer: replied 5 years ago.
Ok, I guess I was asking if she hasnt been paid directly from the client for over a year if that completes the requirments on the non compete of termination of employment for one year before you can solicite a client. Even though she has doing some nursing services although for our company hired by the client?
Expert:  INFOLAWYER replied 5 years ago.
If she is not paid, she can walk off and treat it as constructive termination beginning the one year clock, BUT what complicates matters here is that she kept working and did not so leave.   
INFOLAWYER, Attorney
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Customer: replied 5 years ago.
Do you know anything about the federal bill of rights? Does the non compete violate the patients right to chosen medical professional? Because the non compete does exactly that the family wants my wife as a nurse but doesnt want the agency but shes afraid to go out this morning for fear that the agency will sue her.
Expert:  INFOLAWYER replied 5 years ago.
The non compete does not prevent a person from choosing to leave one person/company and proceeding to another. The limit is on solicitation, not customer switching on own volition.   

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