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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 12744
Experience:  B.A.; M.B.A.; J.D.
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Hi, I have an agency that local school district will hire as

Customer Question

Hi, I have an agency that local school district will hire as a vendor/ contractor to provide services for their students with autism. If the districts agree to provide a home program for behavioral, social, parent training etc...therapy, they will contact my agency and contract with me to provide therapist. The therpist can be special Ed teachers, social workers , behaviorists etc. I recruit different professionals who are independent contractors for my agency.
A local school district that I have provided services for nearly 9 years wrote me an email on June 20th 2013 saying they wanted to thank me for all the years of excellent service but would not be renewing my contract again. My contract with them was going to be renewed on June 30th( in 10 days, but texhnically we are to stop services on the last day of school which was june 20 th. same day as email) to cut cost they were going to be hiring their own employees for now on.
My initial reaction was to panic because our students have very in depth behavior procedures. When we bring new staff it takes weeks to months to train new therapist.
I explained this in an email to the board and said I would cut my portion of rates in half to help cut cost if they would just allow us to stay long enough to train.

I wrote the contractors that work fort agency and this district to explain abt the email and ask if anyone would lower their rate a few dollars to help district keep us or at least keep us to train new staff.

Well the next day on June 21 st the districts superintendent wrote to all the people that work for my agency and have been working with this district to solicit them to work behind my back and provided the forms in this email for them to be hired directly by district.

My contract with the district does not have a non compete but my contract with the therapist that have been working for my agency do have a non compete clause that says these therapist cannot work with anyone they have worked with thru me for 2 years after their last day with me.

This has been horrible for my agency. Out of 12 therapist there are six or 7 who would not respond to me at all and I got a letter of resignation a few days later.
This has crippled my company. Because I was with this district so long this district was about 70 percent ofy business.
Also done of them were on other cases which this situation has quickly affected. I feel this could ruin my whole company.
I'm a single mother of 4 and my youngest son has autism. My ex has financially abandon us and my oldest 2 just graduated HS so off to college they were suppose to go. On a side note one of my 4 children is my sons best friend. Long story short is he was being neglected and parents losing another apartment so he asked if I would try to get custody of him and wanted to be with me. After a long custody battle I won custody over him to be his guardian over his biological mom.
After I realized what was really happening I have an appt with a lawyer next week to retain if he feels their is a case here.
The districts lawyer said for me not to contact anyone on board cuz he will represent. I made all involved that I would be pursuing this legally. 6 of them retained lawyers who all sent intimidating letters to me. Please please help. My livelihood as a single mother is now I. Serious jeopardy. I'm so scared :(
Submitted: 1 year ago.
Category: Employment Law
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.



I am sorry to read about your difficulties.

You do have a case against your contractors because you signed a non-compete agreement with them. They would be clearly in violation of the non-compete agreement if they go and work for the school district. You can sue the school for tortious interference with a business relationship for going after your independent contractors when they know or should not that the act would effectively put you out of business. Do not be intimidated by the letters from their Attorneys. You have a good case and should retain your own Attorney to go after the school and your therapists.

You can use the following sites to find local employment Attorneys or for Attorneys that handle complex civil litigation to assist you with your case:



http://www.lawyers.com




http://www.justia.com

Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 12744
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you so much!! Your response was very helpful and I will definitely retain a lawyer. The other lawyers are saying that because my contract says: "either party can terminate the contract by giving a written letter saying you are terminating the contract and resigning plus 5 days notice. " therefore the non compete clause is no longer valid after a letter of
resignation? The non compete clause says: you can not work for any students/children that you worked with through my agency for two years after your last day with the agency.
So does that void the non compete clause?

I have been very active in the autism community and some people wanted to start a petition on a website called :change.org.
It's a website that helps with online petitions. It also tries to get the campaign in the media and newspapers. Do you think this would be helpful or harmful? Anything about petitions I should tell them to be careful with and not say? Again I am grateful for ur help!!! You have been wonderful!!!

Thanks again!!!!!



Expert:  Phillips Esq. replied 1 year ago.

I am so sorry for the delay in getting back to you. I was offline when you responded:

Thank you so much!! Your response was very helpful and I will definitely retain a lawyer. The other lawyers are saying that because my contract says: "either party can terminate the contract by giving a written letter saying you are terminating the contract and resigning plus 5 days notice. " therefore the non compete clause is no longer valid after a letter of
resignation?



Response 1: Those lawyers should lose their license to practice law. A first year law student should know that termination/resignation of employment does not void a non-compete agreement. Quite the contrary, most non-compete agreements are only violated after termination/resignation of employment and that's when the employer would sue the former employee or Independent Contractor for the violation. I HAVE NEVER KNOWN, SEEN, OR READ ANYWHERE IN THE STATUTES THAT NON-COMPETE AGREEMENT IS VOID IF CONTRACT IS TERMINATED!!!

The non compete clause says: you can not work for any students/children that you worked with through my agency for two years after your last day with the agency.
So does that void the non compete clause?


Response 2: Absolutely not. So long as the non-compete clause is reasonable in its scope—duration and geographical restriction, the Court would enforce it. Two-year duration is common and quite reasonable.


I have been very active in the autism community and some people wanted to start a petition on a website called :change.org.
It's a website that helps with online petitions. It also tries to get the campaign in the media and newspapers. Do you think this would be helpful or harmful?



Response 3: It is a two-way sword. The school district may dig in or bow to public pressure. However, petition should be respectful in its tone and not state anything that is either exaggerated or false and should be very careful not to divulge private information regarding your students or the school district.

Anything about petitions I should tell them to be careful with and not say?



Response 4: See my previous response.


Again I am grateful for ur help!!! You have been wonderful!!!

Thanks again!!!!!


Response 5: You are quite Welcome!

Customer: replied 12 months ago.
Hello again,
You were so helpful. I thank you. We retained a lawyer and the school board wants to negotiate. They offered to give me another year of my contract and work with the students/ therapists we had been working with. After the year the school will not renew my contract and allowed to hire the therapist. We haven't responded yet. My concerns are: what if I attempt this and the therapist relationships with me are not salvageable? 6 therapists have resigned from my company? Could there be a trial period for me to attempt to work for the school board but If no one will work with me and it doesn't work then the deal is off ? Or do you recommend something in this situation ? Also , can or should I ask for the school to pay my attorney fee's? Should I ask for a severance package ? Not sure if I am using the right terminology but I'm looking for payment for this whole disaster. I have had Insomia for weeks, since this happend. I had to get medication for that and also I broke out into a rash. My doc says from nerves but I have to see a dermatologist ( I don't have medical ins) and now I can't go in the sun. It's summer and the kids go to beach and pool. Uggg
It's going to be difficult. If you have any suggestions on what is fair for me to negotiate? You were so helpful last time. I am putting a bonus for last time you answered now. I didnt have the funds at the time. But ur advice was excellent. Thank u
Expert:  Phillips Esq. replied 12 months ago.

Hello again,
You were so helpful. I thank you.


Response 1
: You are quite Welcome!


We retained a lawyer and the school board wants to negotiate. They offered to give me another year of my contract and work with the students/ therapists we had been working with. After the year the school will not renew my contract and allowed to hire the therapist. We haven't responded yet. My concerns are: what if I attempt this and the therapist relationships with me are not salvageable?


Response 2
: Then, you have effectively waived your rights to pursue the therapists and the school district. So, you ought to consider asking for a trial period and if it does not work out, then the school must pay you a certain amount to compensate you for your damages, for loss of the therapists and for the district’s interference with your relationship with your therapists.

6 therapists have resigned from my company? Could there be a trial period for me to attempt to work for the school board but If no one will work with me and it doesn't work then the deal is off ?



Response 3
: Yes, there should be and you should insist that the provision be put in any agreement. The school district has tried to undercut your business. So, I would not give them easy way out if I were you. Also, see my response #2.


Or do you recommend something in this situation ?




Response 4: If you have already lost 6 therapists and your relationship with others are questionable, you may consider asking the school district to pay you for the damages and not agree to work with the school district. You cannot fulfill your contract with the school district without your therapists.


Also , can or should I ask for the school to pay my attorney fee's?


Response 5:
Yes, you certainly can.

Should I ask for a severance package ? Not sure if I am using the right terminology but I'm looking for payment for this whole disaster. I have had Insomia for weeks, since this happend. I had to get medication for that and also I broke out into a rash. My doc says from nerves but I have to see a dermatologist ( I don't have medical ins) and now I can't go in the sun. It's summer and the kids go to beach and pool. Uggg



Response 6
: You should ask for compensation for the damages caused by the school district's action along with payment of your Attorney's fees.


It's going to be difficult. If you have any suggestions on what is fair for me to negotiate? You were so helpful last time. I am putting a bonus for last time you answered now. I didnt have the funds at the time. But ur advice was excellent. Thank u


Response7
: You may consider not renewing and ask the school instead to compensate you for your damages. If you do not have your therapist because of the school district’s interference, it would be difficult for you to carry out your duties under the contract. If you decide to sign a contract with the school district, you would need to put a trial period and lump sum amount in case it does not work out. Remember that you are given up your right to sue therapists for breach of the non-compete agreement if you were to sign this contract. So, you need to be adequately compensated for deprivation of their services and for them now being in competition with you. So, the lost of the opportunity to sue the therapists should be taken into account in any negotiation.


Please let me if you need further clarification.



I thank you very much for the positive rating and the bonus.

Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 12744
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 2 other Employment Law Specialists are ready to help you
Customer: replied 12 months ago.
I started to write you and may have submitted by accident.
Ok, if I take the year and ask for attorney fees as well as compensation for damages, do you have a suggestion on how I come up with that figure?
Would this be upfront or at the end of the year? Can you suggest a fair trial time?
What if the therapist who resigned want to work with me again because I got the contract back ? What do you suggest?
If the trial time determines that it won't work and I don't have cooperation from therapist or enough staff due to the schools Interference, does that still mean I waived my rights to suing? If so, what should I expect to get after a trial period determines we can't do the services ?

Finally if I don't do the year and waive my rights to sue the school and district could you suggest a way to determine a figure. The gross amount per month was approx 12,000 to 19,000 per month. Usually 15,000.
Somehow the district told my lawyer our services are approx 70,000 per year. I think the year offer was not for all 4 students. Just 1 large case that was about 6 to 7 thousand a month. Sorry but a lot of info was thrown at me in a short amt of time.
So assuming the year is for only one case. If I don't do the year and ask for compensation instead, can you suggest how I figure out a number for that?
Thanks again!
Expert:  Phillips Esq. replied 12 months ago.

I started to write you and may have submitted by accident.
Ok, if I take the year and ask for attorney fees as well as compensation for damages, do you have a suggestion on how I come up with that figure?


Response 1: Your Attorney should keep careful record of his/her time and submit his bill to you. You can then use that figure. As for other damages such as for emotional distress, you would need to have record of your visits to your doctor's offices, items bought to relieve your stress, time spent not working because of stress. Then calculate the value of the loss of time by multiplying the hours lost by your hourly compensation rate plus you doctor's bills and other incidental expenses.


Would this be upfront or at the end of the year?


Response 2: It should be upfront because the damages are already there. You have already incurred Attorney's fees and suffered stress b and incurred other expenses ecause of this situation..


Can you suggest a fair trial time?



Response 3: 90 days.


What if the therapist who resigned want to work with me again because I got the contract back ? What do you suggest?



Response 4
: You need to have the therapist sign another contract with another non-compete to be on a safe side.


If the trial time determines that it won't work and I don't have cooperation from therapist or enough staff due to the schools Interference, does that still mean I waived my rights to suing?


Response 5: It depends on the terms of your contract. So, whoever is drafting the contract should make sure to account for all the contingencies. That is, if it does not work out after the trial period, you either retain your rights to sue or the school pays you a lump sum for waiving your rights to sue.


If so, what should I expect to get after a trial period determines we can't do the services ?



Response 6: You should be paid for the 90 days worked plus the lump sum to waive your rights to sue and for releasing your therapists to work for the school district.


Finally if I don't do the year and waive my rights to sue the school and district could you suggest a way to determine a figure. The gross amount per month was approx 12,000 to 19,000 per month. Usually 15,000.
Somehow the district told my lawyer our services are approx 70,000 per year. I think the year offer was not for all 4 students. Just 1 large case that was about 6 to 7 thousand a month. Sorry but a lot of info was thrown at me in a short amt of time.
So assuming the year is for only one case. If I don't do the year and ask for compensation instead, can you suggest how I figure out a number for that?

Thanks again!




Response 7
: No need for an apology. I am here to assist.


The amount per month multpled by 12 months. Since your usual contract is between $12,000.00 and $19,000.00, I would go with higher amount of $19,000.00 and multiple that by 12 months. Also, if the district argues that the amount is high, you should counter that you are releasing the therapists from there non-compete agreements to work for the district.



You are quite Welcome!

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