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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11787
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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For Andrea...And I only want Andrea to address this, please

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For Andrea...And I only want Andrea to address this, please



Hi Andrea,



Thank you for the Q&A session the other night. Here's a follow up and where things stand after meeting w/"my boss", her husband/company VP and TWO of their lawyers at their law firm today:



There were two lawyers at the meeting, one an employment lawyer, the other more of a contract specialist in the pharma industry. In short, the employment lawyer said that though my boss sent a terse email firing me, it wasn't valid according to my contract and was, therefore, invalid and that I was still employed.



From my contract:







8. Termination.


A. This Agreement may be terminated by ACME CO as
follows:


i. Upon thirty (30) days written notice, if
Consultant is unable to provide the consulting services by reason of temporary
or permanent illness, disability, incapacity or death.


ii. Immediately upon breach or default of any
obligation of Consultant pursuant to Section 6, Covenant Not to Compete, or
Section 7, Confidentiality, of this Agreement.




iii. Upon breach or default by Consultant of any
other material obligation in this Agreement, which breach or default is not
cured within fifteen (15) days of written notice from CBI.


Consultant
shall be eligible for commissions which may become due on any sales made prior
to termination pursuant to Section 8.A.i., but pursuant to Sections 8.A.ii. or
8.A.iii.


Am I still a contractor to these people? Obviously, I was taken aback. In any event, the one hour meeting was surreal, given how vague all four of them were. One question I kept asking was why they wanted me back if they thought I had colluded with someone against the company's interests; no answer. They all clearly, believe I hold some magic key to getting this lost potential account back or have some knowledge of why it was lost, even though my boss admitted that she sent her contract lawyer/pharma lawyer to negotiate with them for four weeks without my even knowing it (My boss obviously meant to take this account away from me, close it, and never tell me about it so she wouldn't have to pay me commission.)

Beyond that, we all agreed that the contract needed revision, and though I demanded two of the points you suggested, no termination unless I am convicted of whatever I'm accused of and a clause stating that I am absolved of any wrong doing, did not press any further and said I'd email my other conditions. The email I actually sent:

Karen,

Thank you for meeting today. Please send me an outline of your/ACME's positions on this matter as it currently stands, what you want to see happen and summary of today. This will help me clarify my own points which I will then send back to you.

In short, I don't really know what it is that they want from me, if I am still under contract to them and, if I am, what the implications are for me. My company email account is still cut off. I cant get away form these people fast enough, but I feel I need this job in order to get one.

Any thoughts advice?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Andrea, Esq. replied 1 year ago.

Good Morning, Rivka/Taylor, Welcome back to JustAnswer, Thank you for requesting me, I appreciate it, Boy, talk about early risers, you are certainly up early. I just hope you have some good new for me about your meeting. I will read your post as soon as I send this to you, I just wanted to say Good Morning and that I just got your message. Please give me a couple of minutes to read your post, then let me see if I have any questions for you,

 

 

ANDREA

 

 

ps. Which name will you go by today ? :)
Expert:  Andrea, Esq. replied 1 year ago.

Hi, again,

 

I don't trust them and now that you told me about how she tried to take that account from you without your knowing about or telling you, I trust them even less. I honestly think you did GREAT. How dare they try to intimidate you with 2 lawyers at the meeting besides yur "boss" and her husband - That's 4 against 1. You di more than Great, you were fantastic!

 

Of course, I do not know what the rest of your contract says, but from what you reprinted here, this is a "Contract of Adhesion" - Totally one-sided. I particularly do not like Paragraph (iii). They can terminate the relationship at any time giving you 15 or 30 days notice depending on the circumstances and I do not like that. They can call anything you do a "breach" or a "default" and terminate because who would be the judge of whether or not you "cured the breach or the default"

 

They can arbitrarily terminate the relationship without any liability and my honest opinion is that is exactly what they would do once you told them whatever it is their fishing for. I think that one of the things the lawyer said is interesting - Basically he is saying this,

 

"You were not terminated because you were not given the requisite notice. So because we do not want you to sue us for breach of contract because we did not give you notice, come back, stay a couple of weeks, let us give you notice so that we can absolve ourselves of all liability, then we'll terminate the relationship"

 

Your letter to Karen is perfect, I could not have done it better myself. See what she says, (because I did not get anything constructive from that meeting, or beneficial to you), but I would still not say a word until I received a solid written contract without any of their nonsense about default, breach, etc. You should also insist on some minimum term of engagement as an Independent Contractor, and they definitely must include a provision that you will be given a good reference when you leave so that nobody can badmouth you to any new or prospective employer. I would be interested to see what Karen's response is ad what she expects, just don't let anyone in there intimidate you,

 

___________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I can receive credit for researching your question and providing you with an Answer, otherwise I will not receive any credit for assisting you,


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Thank you for allowing me the opportunity to be of service,

ANDREA

 

 

 

Customer: replied 1 year ago.

Hi Andrea,

 

Thanks. My name isXXXXX guy. I let my friend, Rivka, use my account as she is a family law atty in San Diego and specializes is LBGT family issues...and so she's chasing billable hours without much success and wanted to see about signing up on justanswer.com as a lawyer. I'm having trouble getting her info out of my account and will write to customer support for assistance.

 

So, to continue this--and I will 'duke' you extra pay/tip (and did write a glowing review of you after our last session)...

 

...Do I actually have an actionable case against my boss? I would think the amounts of money here are so small that it wouldn't move any labor atty's needle at all. I am waiting for Karens reply to the email I shared with you, but my DRAFT response is this whatever she writes (even w/o having seen her response yet) is this:

 

"he revised contract should remain the same except:

1) Front-load the commission. As a very high percentage of
accounts are lost, I want 9% of recipts for the first deal (even if that is
more than one study) and will take 6% on subsequent studies from the same
sponsor



2) A provision that I
cannot be terminated, aside from becoming incapacitated, except for this:

 

 

ACME shall have the
right to terminate this agreement only on if Taylor is convicted of a
crime classified as a felony in this State, and for no other reason than a
felony crime



 

3) By
signing this Agreement ACMEadmits that Taylor did not engage in any
collusion, over or covert with anyone, including any outside or inside
consultant



4) All accounts that
Taylor Norwitt has or is currently working on will remain his and will be
commissionable to him



5) I will not sign a
non-compete that restricts me in any way if and when I am no longer a
contractor to ACME. I will not, however, compete against while I am engaged
as a contractor.



5) All leads from
Taylor territory, no matter how those leads are generated (e.g.
including, but not limited to trade shows, web leads, call-ins, etc) shall be
sent to him for follow-up as soon as they are generated. must list any
accounts deemed "house accounts", in writing, prior to my re-engaging
w/acme. Such "house accounts" must be bona-fide accounts (e.g.
contracts for studies signed) before Taylor was engaged as contractor
BUT after Taylor left ACME

 

to work at (another company in the same industry. I took a year and a half to do so, then returned to acme. If a
study for a company in my territory has been quoted, ACMEor Mike (the other salesman)can
work this account only for purposes of closing the study already quoted.



6. Sponsor study outlines (the contracting pharma provides, usually, an outline of what they want/need done and this is the basis for a quote and study. Sometimes outlines provided are useless and we have to revamp them. This never happens on time)are to be reviewed by ACMEmanagement prior to issuance of quotations
and any potential technical/study conduct or regulatory problems. The purpose
of this to apprise study sponsors of said problems prior to signing a contract,
not after, and may, therefore increase client retention.



These meet my need tonot be wrongly or unjustly accused and terminated. It meets my need to be
compensated fairly for the very hard work I do--and can only do for ACME, not
anyone else--despite the mediocre client retention record.



Keep in mind, I am ot a lawyer, but will use one to help me finalize this revision so there are
no holes in it. "

 

Questions:

 

1) is the above okay?

2) Can I just walk away and be done with this with no fear of consequences? This might be my best option--just get away from this company--and try to get another job without already having one?

3) If yes to the above, how do I protect myself from their slander, etc, knowing full well that proving libel/slander is tough to do?

 

Any other thoughts?

 

BTW, I usually start work at 5:00AM, but am only up as late as I've been because I am very stressed.

 

Taylor



 

Customer: replied 1 year ago.

BTW, am I still under contract? If so, do I heve to notify them that I'm terminating with them?

 

Finally, any advantages/disadvantages to calling the consultant I'm accused of colluding with? Would doing so be collusion?As an aside, the guy likes me a lot--has for ten years--and I've been using him as a professional reference in my job search--good or bad thing?

 

I sometimes get the feeling that most JD's would better serve their clients if they also had a degree in psychology or counseling;)

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Taylor, Sorry for the delay, Didn't realize how many hours I had been online. That explains why I was seeing double, :)

 

Thank you for the positive reviews, we are never shown the results or comments which customers give in any random surveys they ask customers to take, so thank you for letting me know.

 

Thank you for straightening out the identity situation, and will Answer your last questions first

 

Q. Am I still under contract ?

 

A. You are if you want to be. As I previously stated above, they realized that Karen should not made those accusations of collusion and then terminated your contract based on her assumptions. The lawyer said you are not terminated just to protect themselves. They want you to stay on just to terminate you according to the requirements - with notice, that is how I see it. If you decide to leave them, you could do so without ay liability by notifying them in writing and saying something like,

"As you know, on May ______ , 2013, Karen told me in no uncertain terms that she terminated my contract with Acme by saying, (here, quote what she said). There can be no misunderstanding of what she meant by that) .........." etc.

 

That way, they cannot come back at you and say you breached the contract.

 

I realize that it is easier to find a job when you already have one, but that is not always the case. In addition, you hve to consider the pressure and stress you might feel working under these conditions - knowing that at any time, you could be accused of collusion based on nothing but assumptions. It's a hard decision, but only one that you can make.

 

Q. Advantage, disadvantage of calling the consultant you are accused of colluding with

 

A. If I were in your position, I would not sever any of my outside ties based on what Acme thinks. If someone in the industry knows me well enough to give me a good recommendation, I certainly would continue my association with them. You saw how easily Acme assumes the worst and you should stay in contact with the positive people in the industry. Continuing your contact with this individual is certainly NOT collusion by any stretch of the imagination, nor could it be taken as such. But narrow minded people are prone to make moronic assumptions and if I have learned anything, it's that I cannot prevent people from thinking what they want to think, nor can I prevent people from making fools of themselves,

 

Q. JDs should have a degree in psychology or counseling -

 

A. Yes, they should, especially if the JD includes domestic relations in their practice. I do a lot of domestic relations, so much so, that I qualify for a PhD. in both psychology and counseling, based on "On the job training", but also qualify as a test subject for any psychological experiment. No matter how great the settlement you get for a divorce client, they are never satisfied, it's the lawyer's fault that the marriage ended in divorce, and how dare the lawyer send a bill in the midst of all this misery you're feeling.

 

Now, for the other points -

 

Q. Do you have a actionable case against your boss ?

 

A. You have a cause of action for wrongful termination and possibly for defamation of character, but the issue is whether they should be pursued.

 

(i) Wrongful Termination - She had no right to terminate the contract based on mere assumptions, but it would turn into a long drawn out affair to prove it. However, if the company started playing games with one's reputation in the industry and their future in that industry, then it becomes a matter of necessity and principle. You could bring in the consultant to testify as to exactly what your discussions were about and prove that there was no collusion. It would be favorable to you and cast Acme in a very bad light in the industry. And, if you could prove you lost commissions, you would be entitled to damages;

 

(ii) Defamation of Character - If she verbally maligned you to others, it would be slander and if she made false statements in writing to others, it would be libel. The four elements of a defamation action which a Plaintiff must prove are the following:

 

(a) Defendant made a false statement;

(b) Defendant knew the statement was false, or made the false statement in reckless disregard of the truth;

(c) Defendant "published" the statement. "Published" means it was conveyed to a third person; and

(d) Plaintiff suffered damages to his name and reputation in the community.

 

 

1. Commissions - I am glad you took my suggestion and make a 9% commission one of your demands; it is an excellent idea and certainly well deserved and reasonable because the most difficult part is getting them to sign on with your company. The commissions should continue for future work because any way you look at it, it is your customer, you were responsible for convincing them to sign up with you, so why shouldn't you reap the rewards of your efforts;

 

2. Termination - I had stressed this because it is something "concrete" and something that can be proved, rather than their reasons for which they can call almost anything a "breach" or a "default"

 

3. Admission - This is absolutely necessary because this will prevent them from giving you a bad recommendation and if they ever thought of doing so, you will hae your copy of the contract to prove their admission. One hopes that it would not come to that, but at least you will be protected;

 

4. & the second No. 5. - The accounts should remain yours, and this goes withut saying;

 

5. Non-Compete - You made this too broad and you are limiting yourself. Let me think about the wording I would put in this paragraph and I will get back to you on that;

 

6. This is fine

 

 

Can you walk away and how to protect yourself - On leaving, please see my Answer to "Am I still under Contract ?"

 

With respect to protecting yourself, I would draft a written statement on the reason you are leaving and direct it to Karen, and the HR Department, if they have one. Just make sure that it goes into your permanent Personnel File. The statement would be the same as what I wrote in my Answer to "Am I still under Contract ?" where you give the reason, just elaborate a little more on that,

 

_________________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I can receive credit for researching your question and providing you with an Answer, otherwise I will not receive any credit for assisting you,


Bonus and Positive Feedback on Survey are greatly appreciated,



Thank you for allowing me the opportunity to be of service,

ANDREA

ps Thank you for explaining "duking" out to me. For a minute there, I thought you were going to put me in a boxing ring and duke it out with me. I can assure you that the outcome would be a KO, 10 seconds into the first round

Customer: replied 1 year ago.

Hi Andrea,

 

Once again, I have to thank you for your clear, concise answers. And don't sweat the "delay": my emotions might be a bit raw, but there's no reason for me to be in a rush.

 

Okay:

 

I'm under contract if I want to be, but in this instance, I need to get a revised contract. If I don't want to be, I need to follow the advice you've given me.

 

As to:

 

Q. Advantage, disadvantage of calling the consultant you are accused of colluding with

I certainly will continue my association with him, he's well known in the pharmaceutical industry and will be a real asset to me in the future. I should've been more clear about what I meant which was am I in breach of confidentially or am I in collusion if I discuss the current matter with him? I'm not sure there's any advantage to doing so and if I do, I may only be doing it for emotional reasons rather than from any discernible logical reason, e.g. contacting him because it somehow benefits me in this situation (e.g. I might ask him if my boss--Karen is my boss' labor lawyer--defamed me to him--which seems doubtful). Your thoughts?

 

 

Finally, I suppose the part I'm unclear about is if I should just terminate according to your advice above and, more to the point, should my letter of termination include clauses not only about defamation, etc, but an insistence on any particular terms (ex: 3. Admission - This is absolutely necessary because this will prevent them from giving you a bad recommendation and if they ever thought of doing so, you will hae your copy of the contract to prove their admission. One hopes that it would not come to that, but at least you will be protected) VS. trying to get a new contract then terminate, as you and I both think they are trying to do.

 

5. Non-Compete - You made this too broad and you are limiting yourself. Let me think about the wording I would put in this paragraph and I will get back to you on that;

 

I'd appreciate that! And don't worry about getting this done !NOW!, I want to make some move in a business-like time frame, but HURRY, HURRY isn't necessary.

 

BTW, I never got a response to the email I sent to labor atty Karen yesterday asking "

Thank you for meeting today. Please send me an outline of your/CBI's positions on this matter as it currently stands, what you want to see happen and summary of today. This will help me clarify my own points which I will then send back to you."

 

Should I leave the ball in her court or make some move, whatever it is, be to terminate or to negotiate a new contract?

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Taylor, Thank you for the reassurance regarding on the time frame,

 

 

In Answer to your questions,

 

1. Continue your association with this consultant. I would not mention the present situation with him, but you can tell him something like

 

"I might be needing a reference sometime soon; at present, I can't talk about anything specifically and I don't want to involve you in my problems (or in a situation you did not create), but I will as soon as I am able to"

 

 

Then, when you find a new position, you can tell him what happen and say that you did not talk to him about it because you did not want to involve him in the problem. He will respect you that much more, for considering his time, feelings, etc.;

 

2. If you ultimately decide to leave, I do not believe that they will give you any consideration, or make any concessions, or admissions. I also think that you should not include any reference to defamation, but you can say something like this at the end of your letter,

 

"In closing, I feel I have an ethical obligation to tell you that all your accusations were false, based on erroneous assumptions, were unwarranted and wholly without merit. I am hoping that you do not continue this course of conduct" .

They can then interpret it any way they want and could not accuse you of anything.

 

 

3. With regard o the Non-Compete clause - I would have it read something along the following lines,

 

Upon any termination of this Agreement, (You) shall not solicit, nor attempt to solicit any customers who have already signed an Agreement with Acme."

 

 

You will better understand why I wrote it this way if I show you how I would draft a Non-Compete clause if I were representing Acme,

 

"______ shall not, directly or indirectly solicit any customer which has already signed an Agreement with Acme, nor any prospective customer which ACME is attempting to sign. _____________ will not directly, or indirectly influence, or attempt to influence any of the above described customers by sending them announcements, mailings, offers, and similar media."

4. Regarding the note you sent Karen, since it has only been a day, I do not think I would send any reminders. If they are seriously considering the termination "null and void", and they really want you to stay, as opposed to just wanting you for the information they think you can provide, she will get back to you.

 

I am reiterating my thoughts on what to say and what to withhold and my opinion has not changed. If you decide to leave, I would not utter one word, they just do not deserve to know anything, even if the information is not very significant. Just let them keep wondering. That's the best revenge because curiosity can really drive some people nuts. Just keep in mind that she was planning on keeping from you that substantial commission that belonged to you, if you had not found out about it,

 

 

______________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

 

Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11787
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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