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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Hi, I have worked at client place as subcontractor through

Resolved Question:

Hi,

I have worked at client place as subcontractor through vendor and left that job 6 months ago.
I have got oppurtunity to work at the same client place again and it will be directly with client this time.
I have signed the agreement with the vendor when I was there. But to give the background I was already there at the client place before I moved to this vendor and signed the agreement. Now when I want to work there directly theay are objecting. I wants to know what legal action the vendor can take against me. Please find below the agreement i have signed.

Client Non-Solicitation. During the term of this Agreement and for a period of
twelve (12) months, as measured from the last occurrence of the date of this Agreement or the date of any
introduction, interview, or cessation of services in contemplation of or under a Work Order to this
Agreement, Vendor agrees that it will not provide or attempt to provide, or advise or assist others to take
advantage of any opportunity to provide, any services to a Client hiring manager or Client business unit to
which Vendor or Vendor Personnel has been introduced to or interviewed by or through Trinus hereunder
or to which Vendor or Vendor Personnel provided services hereunder. During the term of any Work
Order and for a period of twelve (12) months after the termination of services under such Work Order,
Vendor agrees that it will not provide the services of the Vendor Personnel assigned under such Work
Order, either directly or indirectly through another party, to the same Client hiring manager or Client
business unit or to a Client in connection with the same Client project or engagement that was the subject of such Work Order.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

Generally, this sort of agreement would be unenforceable in California pursuant to California Business and Professions Code section 16600, which states: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

Quite simply, if the agreement prohibits an employee from "engaging" in that same industry following termintion of employment in any manner, it falls within this definition. Restraint on the ability to do business with former clients clearly falls within this definition, and numerous California cases have expressly held so. See here for a recent case in which the court invalidated an 18-month non-solicitation restriction on a former employee of a tax services company that prohibited the employee from providing services to any of the former employer's clients for a year: http://scholar.google.com/scholar_case?case=3664324957067638309&hl=en&as_sdt=2&as_vis=1&oi=scholarr

There are a few VERY narrow exceptions to the general rule that restraints on competition are unenforceable. The exceptions are a bit complex but include the following: (1) If an owner is selling the goodwill in their business (goodwill is the reputation and name of the business); (2) When there is a dissolution or disassociation of a partnership or (3) Where there is a dissolution of a limited liability company. There is also a limited exception for "trade secrets."

However, a general prohibition on doing business with former clients would almost certainly be unenforceable. Accordingly, an employee under the circumstances you describe would not typically be violating an enforceable contract by dealing with former clients. Thus, such employee could generally work with former clients without fear of a legal judgment being obtained against them.

If you are particularly concerned about being sued, you can request "declaratory relief" from the court. Decrlaratory relief is a sort of pre-emptive judgment, wherein the court decides an issue that will iminently result in a lawsuit before the actual lawsuit is filed against you. As noted, though, an employee who signs an agreement constituting a restraint on trade, as a prohibition from dealing with a specific client would clearly constitute, need not abide by the agreement as it is void in the state of California.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7530
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
California Employment Lawyer
7530 Satisfied Customers
Significant experience in all areas of employment law.