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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 116788
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Date of Contract 10/13/2009. Contract Between Vendor and

Customer Question

Date of Contract: 10/13/2009.
Contract Between Vendor and Employer to provide staffing as below
This letter serves to provide ABC with exclusive permission to submit my resume to the Govt of DC for title/role .net developer
I confirm my availability after two weeks notice
--Candidate Sign
If selected we will make him join this project surely. We will also send him for in person interview if required.
--Candidate Employer Sign
Candidate left the employer and joined another project on 11/3/2009. Employer informed the same to Vendor. Vendor never informed the interview status during this period. On 11/13/2009, Vendor informed Candidate that she was selected. Candidate refused to join as she already got another job and working since 11/3/2009 for another employer.

-Vendor sends a notice on 03/24/2010 to Employer for contract breach asking to pay compensation.

As an employer how do we respond to the notice and what is our legal right to deny vendors allegation.
Submitted: 7 years ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 7 years ago.
As a corporate entity, employer, you must be represented by an attorney in this matter, since no member/owner of a corporate entity can represent the corporate entity in legal matters, it is considered the unauthorized practice of law. This being said, if you were not involved in the process of this employee taking a position for another employer, then you would not be liable to the Vendor for any damages in breach of any contract. If you had a contract with the Vendor that stated you guaranteed the Vendor would retain this employee and you were not involved in this process by the Vendor, then your claim would be that the Vendor caused the employee to take other employment and thus because they caused the harm they are estopped from seeking damages from you.

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Customer: replied 7 years ago.
actual agreement attached with this. I think both conditions are satisfied as you mentioned.1. Employee quit our employment and Vendor did not keep us in loop and communicated with employee all the time. From the actual letter and the notice below can you please provide us better insight in construting the response and provide us a sample format. As soo as I get the format, I would be accepting the answer.

RE: Contract Breach Involving Candidate

My Client: Vendor

Date of Breach: November 12, 2009

Dear Employer

I represent Vendor in its claims regarding the above-captioned

contractual matter between your respective companies. This' letter concerns a certain contract

that was entered by your company with my client in October, 2009 concerning the placement of the above-identified Candidate in a subcontracted position placement pursued with the District of Columbia Government. My client hereby demands payment of compensatory damages and loss of expected profits of $xxx.00 for your company's breach of the aforesaid contract after intentionally and foreseeably inducing my client to act in justifiable reliance upon the subject contract with your company only to fail to perform according to your reciprocal duties thereunder.

As you are aware, Vendor (hereinafter "VENDOR") had a verbal agreement with you and affrmed directly by Ms. Candidate on or about October 12, 2009. You

collectively agreed that my client would work diligently utilizing their unique corporate expertise and contacts to place Ms. Candidate and her inimitable computer skills with a certain specified position as a subcontractor position with the District of Columbia Government. This contract called for VENDOR to pursue position advertised as #207308, in the job title/role of .NET Developer Level 3 for which your company was to be paid at the hourly rate of $xx.00 for forty (40) hours per week. This agreement was cemented and launched by your company and employee, Candidate, by executing and delivering an Exclusivity Agreement which by its own terms included a

corporate assurance that "(I)f selected we wil make him (sic) join this project surely." VENDOR oversaw the proper preparation and formatting of Ms. Candidate's resume' for submission, prepared the application and actually caused to be submitted an ,application for the position, placing the full weight of the VENDOR goodwill and reputation in support of the application, plus generally coordinating the interview and follow-up process with the Master contracting party. Since Ms. Candidate is in the United States pursuant to your company's sponsorship on an H-1 B non-immigrant visa, your company has ironclad rights to substantially all of Ms. Candidate's work product and expertise delivery in the United States. Her normal rights to contract her own employment services are limited, of course, subject to your company's superior rights to her services particularly where so many of her suitors are themselves marketplace competitors. So the authority over when and where Ms. Candidate was to work rested entirely with your company. On or about November 13,2010 when the position was successfully procured by VENDOR and ready for the placement of your employee (Ms. Candidate Candidate) in the contracted position, your company refused to deliver as promised and thereby breached the aforesaid subject contract. Your company, unfortunately, used the pretext of some other intervening contract for Ms. Candidate's services at a greater hourly rate as justification for the breach. This excuse provided no legal justification for the contract breach herein described. As a result of the aforesaid breach, VENDOR was denied the benefit of its own efforts in furtherance of the contract between your companies. In this regard, SRI was unjustly enriched to the detriment of VENDOR and VENDOR was denied its expected revenue of $xxx.00. This figure does not begin to compensate VENDOR for the harm suffered to its reputation within its relevant market for the failure to deliver that resulted from your breach herein. As such, VENDOR hereby demands payment of the entire $xxx.00 expectancy that it had under the said contract within twentyone (21) days of the date of this letter. Failure to tender the said amount as herein demanded wil leave VENDOR no option but to pursue all of the legal remedies available to it in this situation, including but not limited to a lawsuit to recover the identified damages

Expert:  Law Educator, Esq. replied 7 years ago.
Let me see if I understand what happened here, since I don't think it was clear in your first post. This employee worked for you (not the vendor) under an H-1 visa, meaning you sponsored her employment in the US. Then you as the employer entered into a contract with the Vendor to get another job for this employee. While the Vendor was working on getting another job for this employee, you allowed the employee to take another job and did not seek to force the employee to remain working for you under your H-1 visa agreement and under the terms of the contract that stated you would make them take the new job. Also, when you put expectancy damages they are asking as $xxx.00, does that mean less than $1000.00?
Customer: replied 7 years ago.
Employment was conditional one upon being selected for vendors position. Even before we sponser her H1, the employee left. Her employment was pretty much a very short duration(about 3 weeks). Employee was looking out for a new job and found one through another employer and left our employment and joind the other company. According to our contract with employee, employment is at will and employee is not restricted to bound with us.

Expectancy damages were 35000$
Expert:  Law Educator, Esq. replied 7 years ago.
You are going to need more than writing a response letter here. The wording of your written agreement with the Vendor states that you would guarantee this employee would take the position if offered and there were no contingencies in that agreement that I could find about the employee being at will and leaving before they found employment. This failure is going to be on the fact you did not have the employee bound to your company and since they were not bound, your company should not have entered into the agreement only the employee should have entered into the agreement.

That being said. Your argument here is that the employee was not sponsored by you for the H1 Visa and was not bound to you by any other contract, but I am afraid this may be weak since you agreed to make the employee take the position, which you could not do if they were an at will employee with your company and you had no control over them.

This is not some easy response to provide to you, it is going to require some extensive legal research and it is going to require some negotiation, given the dollar amount involved in the damage request. But based upon the premise of contract law and the wording of the contract above, I am afraid you are going to have a very difficult defense here, especially if you did not notify the Vendor immediately that this employee had given notice and left your employ or did not inform the Vendor that this employee was only an at will employee of yours and was not bound to you by any agreement.

You MUST go to your local corporate attorney for this matter, writing a response on this is way beyond the scope of this service because of the issues involved here and the wording of the contract.
Law Educator, Esq. and 2 other Business Law Specialists are ready to help you
Customer: replied 7 years ago.
"You are going to need more than writing a response letter here. The wording of your written agreement with the Vendor states that you would guarantee this employee would take the position if offered and there were no contingencies in that agreement"
.....In the agreement there was a two week notice clause (attached image in above conversation). We informed vendor after 3 weeks passed from agreement date. Usually these type of agreements are called 2 week exclusivity.

As soon as employe gave us the termination notice, we have informed vendor that candidate is no longer available (dated 11/3/2009). Vendor did not respond to that email and never communicated with us and after few months we got response from vendor in this notice form.

Since vendor never informed us that candidate is confirmed for the position, can we use it against them?
Expert:  Law Educator, Esq. replied 7 years ago.
Your response would be that the term of the agreement was 2 weeks from date of signing and that you provided notice after the 2 weeks had expired that the candidate was not available and that the delay by the Vendor was the cause of their damages and thus they are estopped from claiming damages for a matter that was caused by their own breach of the agreement in failing to perform as promised within the 2 week period specified in the agreement. You attach a copy of the agreement to the lettter and highlight the clause with the 2 week term.