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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37928
Experience:  I provide employment and discrimination law advice in my own practice.
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Legend:Company “A” Consulting = Large Management/Technology

Resolved Question:

Legend: Company “A” Consulting = Large Management/Technology Consulting Firm Company “B” Software = Large Hardware/Software Technology Company Company “X” = Large Health Car Insurance Provider I had accepted a job offer in the technology Professional Services / Consulting industry and they had me sign an employment contract. I would like a lawyer to review the contract, approximately 8 pages, which I will make available as a PDF. I am planning to leave my current employer with whom the contract is with to go to work for a partner of theirs doing relatively the same job I am currently doing. The companies in question are Company “A” Consulting, my current employer, and COMPANY “B” Software; Company “A” Consulting is a partner of COMPANY “B” Software. Specifically, COMPANY “B” Software is the software vendor and Company “A” Consulting has a partnership with them. This partnership allows Company “A” Consulting to implement COMPANY “B”'s software and COMPANY “B” Software provides them limited support to be able to accomplish these types of projects they otherwise would not be able to do without COMPANY “B” Software partnership support. In addition, I am considering leaving consulting all together and going to work directly for a large enterprise, Company “X” Healthcare, that utilizes COMPANY “B”’s Software. I am unsure if Company “X” Healthcare is a client of Company “A” Consulting but, I do know for sure that I have never had any contact with Company “X” Healthcare while under the employment of COMPANY “B” Consulting. Contract in PDF format attached, private information masked.


 


 

Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.

My apologies but while I can happyily answer questions or concerns, I cannot personally review the agreement as it may be considered 'representation' and something that is barred by site rules. If you have specific questions about certain language I would be happy to review it for you but I cannot directly review your whole agreement. Would that suffice?
Customer: replied 1 year ago.

I am primarily interested in the Restrictive Covenants and how they might relate to the scenarios I have laid out in my post; if you are willing to review this section of the document which I can copy and paste here and answer in the context of my question; then that approach would be acceptable.


 


Document Sections:


 


 


2.
Covenants.
Employee agrees (a) to maintain the confidentiality of all private information as set
forth in the Company's Private Information policy attached as Annex 1 and as from time to time amended,
(b) not to solicit clients or employees as more fully set forth on the attached Annex 2 concerning
Restrictive Covenants and (c) to abide by the Company's policy with respect to Intellectual Property as
set forth on the attached Annex 3 and as from time to time amended. The term "client" as used in this
Agreement means any individual, entity, or governmental agency to which or for whom the Company has
performed, sold or solicited outsourcing, information technology and/or management consulting services
or products, and all operations, corporations and/or organizations owned, operated, related, or affiliated
with such individual, entity, or governmental agency.


 


 


 


ANNEX 2
RESTRICTIVE COVENANTS
1.
During the period of employment and for twelve (12) months following the termination of such
employment for any reason including, but not limited to, involuntary termination with or without cause,
Employee may not, without the Company's prior written consent, solicit, sell or perform, for his/her own
account or for any other entity, services or products which are directly or indirectly competitive with the
services or products of the Company to or for any client for which Employee or employees under his/her
managerial control have SOlicited, sold or performed any such services or products on behalf of the
Company during any part of the year immediately preceding the termination of his/her employment.
2.
During tile period of employment and for twelve (12) months following the termination of such
employment for any reason including, but not limited to, involuntary termination with or without cause,
Employee may not directly or indirectly hire any employee of the Company or any former Company
employee within six months after the date such person ceases to be a Company employee for his/her
own account or on behalf of any individual, corporation or other entity other than the Company, nor
attempt to directly or indirectly induce or solicit any such employee to leave the employ of the Company
or to apply for or accept employment with any individual, corporation, or other entity. For purposes of this
Annex 2, "solicit:' means any direct or indirect communication of any kind whatsoever, regardless of by
whom initiated, inviting, advising, encouraging or requesting any individual, corporation or other entity, in
any manner, to take or refrain from taking any action.
3.
Employee acknowledges that the Company is providing the employee with access to the Private
Information set forth in Annex 1 in part in exchange for Employee's agreement to the restrictive covenants
set forth in this Annex 2. Employee and the Company further acknowledge and agree that the duration
and geographic scope of the covenants contained in paragraph 1 of this Annex are fair and reasonable.
Accordingly, Employee and the Company agree that, in the event that any of the covenants contained in
paragraph 1 are nevertheless determined by a court to be unenforceable because of the duration or
geographic scope thereof, the court making such determination may reduce such duration and/or scope
to the extent necessary to enable such court to determine that such covenant is reasonable and
enforceable, and to enforce such covenant as so amended.
4.
All references to the Company in this Annex 2 shall be read to include the parents, subsidiaries
and affiliates of the Company.


 

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Joe. That I can do without an issue. Please allow me a bit to evaluate.

In plain English this means that you are barred from discussing anything pertaining to this agreement and not to solicit past employees, clients, or others with whom the company had a relationship, and also not compete against them directly or indirectly for a period of 12 months. You are also not permitted to hire anyone to work for you once your relationship is terminated within 12 months of your termination or if the person you are trying to hire was terminated within 6 months. Their solicitation language places the burden on you to show that if there was communication, it was not based on offers or enticements of any kind. Further, the agreement states that if any part of the terms is somehow found unenforceable, the remaining terms survive and that offending term is modified until it is legal. This appears to be a proper agreement that the courts would uphold.

Good luck.

Customer: replied 1 year ago.


I appreciate your response but, it doesn't seem to answer in the context of the scenarios I provided which I had indicated I was looking for as an acceptable answer. If this is something you cannot do, please indicate so.


 


Thank you

Expert:  Dimitry K., Esq. replied 1 year ago.

Joe, I am sorry, I misunderstood your question. Please give me a moment to respond to each condition that you listed.

The companies in question are Company “A” Consulting, my current employer, and COMPANY “B” Software; Company “A” Consulting is a partner of COMPANY “B” Software. Specifically, COMPANY “B” Software is the software vendor and Company “A” Consulting has a partnership with them. This partnership allows Company “A” Consulting to implement COMPANY “B”'s software and COMPANY “B” Software provides them limited support to be able to accomplish these types of projects they otherwise would not be able to do without COMPANY “B” Software partnership support. In addition, I am considering leaving consulting all together and going to work directly for a large enterprise, Company “X” Healthcare, that utilizes COMPANY “B”’s Software. I am unsure if Company “X” Healthcare is a client of Company “A” Consulting but, I do know for sure that I have never had any contact with Company “X” Healthcare while under the employment of COMPANY “B” Consulting.
The first issue, working for "B", would absolutely violate the restrictive covenants as you would be obtaining work with someone who has a direct agreement with "A". "X" could be considered an indirect competitor if A and X are in the same industry, or if they do compete against one another. The fact you may not have had any contact with them in the past does not detract from their potential role as a competitor. In that situation asking X if they compete against A would be wise as otherwise if you pursue employment, A could file suit for breach and for their damages in this instance.

Good luck.

Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37928
Experience: I provide employment and discrimination law advice in my own practice.
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