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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 17459
Experience:  B.A.; M.B.A.; J.D.
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Employment Law Question

Customer Question

Hi,
My Name is ***** ***** I am working as a sub-contractor through a company named XXXXXXXXX for a client named XXXXXXXXX in XXXXXXXXX IL.
I am working with cognizant for past 1year 2 months as a QA (Validation Analyst) and I got a better opportunity in another team at XXXXXX with a different role BSA (Business System Analyst) and better pay rate.
So, I gave 3 weeks of notice to the existing vendor XXXXXXXXXX and they accepted my resignation and my last day with XXXXXXXXX was 5/22/2015. Since, they accepted my resignation I confirmed my position with the New Team at XXXXXXXXX and I was about to join XXXXX on 5/26/2015 through another vendor named “XXXXXXXX”.
But during the 3rd week xxxxxxxxx contacted my new team manager and said that I cannot join the New Position with xxxxxxxxx because, I am under a Non-Compete clause and he said that I did not informed them that I am joining the same client XXXXXXXXXX through different vendor.
Actually, I first Informed to XXXXXXXX manager verbally over the phone that I got another opportunity within the same client and later, I sent an email to accept resignation but I did not specify in the email about the client .
Cognizant accepted my resignation email and that made me to believe that I am released from XXXXXXXXXX and they are ok me joining the new team.
And during end of 3rd week of my notice period cognizant Account Manager (XXXXXXXX) stated that, I cannot join XXXXXXXXXXX from the new vendor XXXXXXXXXXbecause of the Non-Compete Clause.
Since, I have no option left I communicated to XXXXXXX Account Manager (XXXXXXXXX) that I will work with XXXXXXX to take the new position. XXXXXXXXXX got back to me with the rehiring process by negotiating the rate.
Please find the details about the rate discussion with Madan Kumar:
In the rate negotiation XXXXXXXXX asked me if I can work for old rate 35$ per hr. And I said, since I am on the same rate for past couple of years and this being a different role BSA(Business System Analyst) and I already got offer for 45$ per hr through XXXXXXXXX I requested them to match the rate.
XXXXXXXX asked me the next best rate and I gave him as 43$ per hr and he said, he will talk to the XXXXXXX team and get back to me. But, I never heard anything back from XXXXXXX about the rate negotiation.
If they would have got back to me and offered XXXXXXX final rate for this role I would have accepted it. Since, it is better than being jobless. I was trying to contact him in many ways to get the update from him about the rate. Every rate negotiation process will have the final step where company (in this case XXXXXXXX) will come up with their final rate for the position. But this did not happen in my case.
And finally, XXXXXX sent me a text message saying that he informed his decision to the new team at XXXXXXXX and my resignation remains accepted.
I am not at all satisfied with his response and requested him to give more explanation on this. He did not get back to me on giving me the reason for not going forward.
Based on his reply I understood that he is not rehiring me to work for the new team with XXXXXXX and he also blocked me joining through another vendor XXXXXXXX due to the Non-Compete Clause.
So I am jobless right now and me and my husband are under lot of mental pressure from past 4 days and are not even able concentrate on our little 5 year kid because I suddenly lost the job.
The Person who handled this from XXXXXXXX is XXXXXXXXXX his designation is Account Manager at XXXXXXXX I feel like this guy took it personally and ruined my carrier opportunities and made me Jobless.
Attached is the Non-Compete clause which I signed .Can you please review and advise us how to proceed with this case.
Thanks & Regards,
XXXXXXXXX
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Hello and thank you for your question, Haritha. I will do my best to help if I can.
Please be advised that I will not call you as that is something that I see as potential representation (to maintain your privacy I will ask the moderators to block out your number). Just to be clear, you wish to know if the non-compete is enforceable in this case, or what specifically is your question? Please advise!
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Please call me on(###) ###-####
Expert:  Dimitry K., Esq. replied 1 year ago.
I am sorry but I do not contact parties via phone. As an additional service I can discuss this via Skype but please be aware that it will not create an attorney-client relationship. Please advise.
Expert:  Dimitry K., Esq. replied 1 year ago.
I am sorry but I do not contact parties via phone. As an additional service I can discuss this via Skype but please be aware that it will not create an attorney-client relationship. Please advise.
Customer: replied 1 year ago.
Yes i want to come out of this Non Compete clause and i want to file legace case on the company because of which i lost my job
Customer: replied 1 year ago.
Can i come out of this clause?
Customer: replied 1 year ago.
yes i can do skype now please give me the details
Expert:  Dimitry K., Esq. replied 1 year ago.
Hi, I sent the information to you. Once accepted I can then provide you with my name and we can discuss for 15 minutes to see if and what options might exist.
Customer: replied 1 year ago.
Hey before you i accept can i please know if you have office in Chicago so i can meet in person
Expert:  Dimitry K., Esq. replied 1 year ago.
Hello, I am sorry but this is not a website for obtaining off-site counsel. We do not represent you and cannot meet with you off-site. I personally do not have an office in Illinois but even if I did, I would not be able to meet with you as it would violate site rules. My apologies.
Customer: replied 1 year ago.
oh ok thanks then hey you please keep the information confidential
Expert:  Dimitry K., Esq. replied 1 year ago.
There is no attorney-client privilege online, and there is no confidentiality. However once I assist I can ask that this conversation be removed from the site. Would that suffice?
Expert:  Dimitry K., Esq. replied 1 year ago.
There is no attorney-client privilege online, and there is no confidentiality. However once I assist I can ask that this conversation be removed from the site. Would that suffice?
Customer: replied 1 year ago.
yes please
Expert:  Dimitry K., Esq. replied 1 year ago.
great! When ready please accept the service and then we can privately exchange our skype information
Customer: replied 1 year ago.
I included the names on my question i want them to remove now
Expert:  Dimitry K., Esq. replied 1 year ago.
I have asked the moderators to do so. Please give them some time to get it done, but your thread has been reported at this time.
Expert:  Dimitry K., Esq. replied 1 year ago.
I have asked the moderators to do so. Please give them some time to get it done, but your thread has been reported at this time.
Expert:  Dimitry K., Esq. replied 1 year ago.
I have asked the moderators to do so. Please give them some time to get it done, but your thread has been reported at this time.
Customer: replied 1 year ago.
ok 60 dollars is more sorry i cannot do it now
but can you please advice online can we file a case against the company
Expert:  Dimitry K., Esq. replied 1 year ago.
I am going to opt out at this point as we cannot provide you with 'legal advice'. I wish you the best of luck, please take care!
Customer: replied 1 year ago.
OK thanks please advice me whether if company cannot release me from non compete clause and not ready to rehire me and also blocking me to go with another vendor when i have already got offer from another vendor.is this legal?
Expert:  Phillips Esq. replied 1 year ago.
Hello: This isCustomer I am a licensed Attorney and I will be further assisting you with your post.
please advice me whether if company cannot release me from non compete clause and not ready to rehire me and also blocking me to go with another vendor when i have already got offer from another vendor.is this legal?
Response:Yes, it is legal. If you sign a non-compete agreement, your former employer can prevent you from taking a position that would be in violation of the non-compete agreement if you took that position. Non-compete agreements are generally enforceable if they are reasonable in scope and duration. Regrettably, Illinois does not have a general Statute that deals with non-compete agreements but has specific Statute that governs non-compete for people in certain industries such as news media. See 820 ILCS 17/10:
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2390&ChapterID=68
Customer: replied 1 year ago.
Hi
I am working as a contractor for a company called C technologies for a client called A in IL. I am Working with them for past 1years 2 Months. I got a Better opportunity with more pay in different department through a different vendor called D solutions. So I resigned the current position 3 weeks back and was about to join new department on May 26.But Company C is not allowing me to take new opportunity because of Non-compete clause so I Compromised with them and I told I will rejoin Company C for new Opportunity since they have a Non-Compete clause. Now Company C is saying they accepted my resignation and I cannot rejoin Company C or new vendor although Client is still ready to hire me from Company C. I am jobless from May 26th since I already resigned. Can you please help me on this issue? Is NonCompete Enforceable if I am employed less than 2 years?
Expert:  Phillips Esq. replied 1 year ago.
Hi
I am working as a contractor for a company called C technologies for a client called A in IL. I am Working with them for past 1years 2 Months. I got a Better opportunity with more pay in different department through a different vendor called D solutions. So I resigned the current position 3 weeks back and was about to join new department on May 26.But Company C is not allowing me to take new opportunity because of Non-compete clause so I Compromised with them and I told I will rejoin Company C for new Opportunity since they have a Non-Compete clause. Now Company C is saying they accepted my resignation and I cannot rejoin Company C or new vendor although Client is still ready to hire me from Company C. I am jobless from May 26th since I already resigned. Can you please help me on this issue? Is NonCompete Enforceable if I am employed less than 2 years?

Response: Yes, non-compete agreement is still enforceable even if you are employed for less than two years. However, Company C is not playing fair or being reasonable. You resigned to take a new position with another company, but upon threat from Company C, you changed your mind and decided to rejoin Company C. Now Company C is not only preventing you from rejoining the company, but it is also preventing you from going to another company. Legally, Company C can do this, unfortunately, but ethically, what Company C is doing or is attempting to do is wrong. Company C it appears is punishing you for resigning from the company in the first place. My suggestion here would be if the new company is willing to take a chance to still hire you despite your noncompete agreement with Company C that you may join the company. However, company C may file lawsuit against you for breach of the noncompete agreement. Then, it would be up to the Court to decide whether the non-compete agreement that you signed with Company C is reasonable in scope and duration.
Customer: replied 1 year ago.
Hi ***** is not willing to hire me because of the clause.Still do you think any lawyer can help me to file a lawsuit against Company C.
Thanks
Expert:  Phillips Esq. replied 1 year ago.
Hi ***** is not willing to hire me because of the clause.Still do you think any lawyer can help me to file a lawsuit against Company C.
Thanks

Response: Unfortunately, no. There is no legal basis for lawsuit against Company C. As I previously stated, Company C is being unreasonable. However, it does not mean that what Company C is doing is illegal, unfortunately. You cannot force Company C to take you back after your resignation. Company C can enforce the non-compete agreement that you signed.
I am so sorry that I do not have better news for you.
Customer: replied 1 year ago.
Are non-competes enforceable?
This is a very common question, and is popping up quite often with the buzz of high level cases regarding non-competition and employees “jumping ship” to other similar companies.
In any case, it depends on the circumstance. Each situation is slightly different. Courts want what is reasonable for both parties. Judges will look at several factors when deciding on a ruling for these types of cases, including:
• Local or regional restrictions: Generally, outlandish geographical restrictions (such as state-wide) won’t be enforced because it is unreasonable to the employee. A local area restriction may pass, so long as it is necessary to protect the employer.
• Time period restrictions: While there is no limit on the time period an employer can specify, the longer it is, the more likely it won’t be fair to the employee.
• Type of industry, work or specific company: Businesses who have direct competitors may indicate the company they don’t want employees going to, however an employer can certainly not put restrictions on the field of employment in general.
• Circumstance: Sometimes non-competes will be contingent on whether the employee was terminated or if they left the company voluntarily.
• Economy: If the non-compete clause interferes with the local economy, such as putting another company out of business or restricting the competition, it may not be enforceable.
• The employee’s ability to find work: An employee should be able to find a job after leaving their current one. If the court finds the non-compete too restricting in this sense, it will not hold up.In the above List their last point suits my situation i found the the new Job My self and even my client is willing to give contract to Company C but hey are not willing to take the contract and at the same time not willing to leave ffrom Non_Compete
Expert:  Phillips Esq. replied 1 year ago.
I am sorry, but it appears we are now involved in circular posts. I have already stated previously that non-compete agreements are indeed enforceable if they are reasonable in scope and duration. So, I am going to opt out of this post and give another Attorney the opportunity to comment on your post.
Best wishes

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