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Hi. Related to the question I asked you the other day. The…

Hi. Related to the...
Hi. Related to the question I asked you the other day. The settlement reads that I am not supposed to be employed (work for) by any companies which has it's mother company's name in it. (Obviously, this company is large enough to have more than a dozen subsidiaries (facilities) over the US with its main name imbeded for each company.

Now, I have an opportunity to work for a company which provides contractual workers to one of this former company that I had the settlement with. The agreement does not mention that I cannot be 'on their site.' Besides, I won't be employed this larger company. Would it be considered as 'breach of contract'?

For your info. I would be working on their site full time, even wearing their uniform. Is there any official legal definition for 'employee'? If I am not clear please let me know.
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Answered in 2 hours by:
3/8/2012
AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Employment Law
Satisfied Customers: 13,612
Experience: 19+ Years of Legal Practice in the Employment law arena.
Verified
*Due to rules of your state bar or mine, nothing herein is intended as legal advice, only intended as general information to better help yourself.

Hi again, welcome back. With regard to your post:

Hi. Related to the question I asked you the other day. The settlement reads that I am not supposed to be employed (work for) by any companies which has it's mother company's name in it. (Obviously, this company is large enough to have more than a dozen subsidiaries (facilities) over the US with its main name imbeded for each company. OK, so you can't work for a 'family member.' Can you give me the quoted language? There is a difference, possibly, between "do work for" and "be employed by". You can be employed by a third party non-family company, and not employed by the Company, but arguably provide services/work for that Company.

Now, I have an opportunity to work for a company which provides contractual workers to one of this former company that I had the settlement with. The agreement does not mention that I cannot be 'on their site.' Besides, I won't be employed this larger company. Would it be considered as 'breach of contract'? This is the type of dilemma that court cases derive from! Attorneys could differ, obviously, in their position, depending on which side they are working for. By the terms of the agreement, I'd agree with you - if it says only that you can not be employed by any family company. Thus, I'd argue that it would not be a breach of contract. At worst, I'd argue, the contract is ambiguous, and in contract law, ambiguities are held against the Drafter of the Agreement (the "scrivener"). Did the other side DRAFT the agreement? If so, it would provide a stronger likelihood that any ambiguity would be held against their position and in favor of your reading of the contract.

For your info. I would be working on their site full time, even wearing their uniform. Yet, they are not paying you and are not providing you a W2... and you are not getting group insurance under THEIR group policy etc., right?

 

Is there any official legal definition for 'employee'? Yes, in various contacts, and the above is often considered. However, since this is a contract term, not a statute you are seeking to enforce, I'm not seeing it as definitive beyond the typical use of the word. I'd argue that the company paying the bill, putting me under their Workers Comp, proving me health insurance in their group, etc., withholding my taxes, etc., is the employer.

 

If I am not clear please let me know.You are very clear. My opinion is as noted above. That is not to say you wouldn't want to do thorough legal research via a complete legal publisher (available by subscription via Westlaw, etc.) to find case law as close on point as possible, to see if there has been a near exact scenario like yours that has gone so far as to be appealed, decided on appeal, and then published (which is what it takes to make precedential law and, ergo, that is why there is often NOT a clear answer if the legislature does not yet legislate the issue). But, I'd argue as noted above, in your favor, as a starting point. I can't do the thorough legal research that I would do if it was my case, since that entails days days and weeks of legal work time (dozens of hours, extremely expensive and obviously beyond the scope of your chosen transaction here). But, the above can be a starting point for you, and an opinion on how your position has merit.

 


I hope this helps clarify for you.

Because I help people like you here, for a living---this is not a hobby for me---I sincerely XXXXX XXXXX abiding by the honor system with regard to Accepting answers, by Clicking your ACCEPT button now. Feel free to follow up after, if you need clarification. An ACCEPT also assures that I can assist you again. A BONUS is a wonderful way to tell the expert her time and effort are appreciated. I wish you the best in your future.

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Customer reply replied 6 years ago

Thank you very much for your help. I am not sure what I am actually going to do about the current situation but at least I feel better about MY understanding the content of the agreement. You made my day provided that your answer is not anything 'official' legally.

 

Their attorney was the one that wrote the agreement. It reads exactly like this "I will not apply for emplyment at any family companies to be employed." And it lists each one of those companies specifically that I could not work as an employee.

 

It gets more interesting. About 2 years ago, I had the same opportunity under the same terms and conditions as you noted above, that is to say, I had an agency and they were issuing a W2. In a week or so after I had started working there, they cancelled my assignment, saying that they could sue me for 'breach of contract.'

 

When questioned, this very attorney even said in HIS own email that I should talk to 'my employer' about the detail.

 

Having been tired of 'fighting against a big corporate,' I decided to let it go at that time but always believed it was a BS (excuse my language). Then, as for the settlement money, at the mediation, they told me that they would pay for my attorney and it was not taxable. We, verbally confirmed with them more than a few times, that it was 'non-taxable.' Then, after 12 hours of discussion, I finally agreed to the settlement amount.

 

Guess what, not only did they make me pay for my attorney but also they told me that I had to pay, which l ended up paying both anyway.

 

This incident (being let go of the assignment in such a way) sent out some sort of message and since then I had a difficulty in finding a job in the area I reside. One of my previous employers even mentioned this incident and fired me for it.

 

As you noted in your answer, I understand it would take a lot of work to prove a series of wrong doings they have done so far even after the EEOC settlement, but if I may ask you of one more favor, I would like to know your personal 'opinion.'

 

Should I pursue some sort of 'retaliation' claim against the settlement?

Should I go ahead and take this job opportunity? It pays very well and I am very well qualified for the job.

 

Thank you in advance.

 

 

Hi again, with regard to your post:

Thank you very much for your help. I am not sure what I am actually going to do about the current situation but at least I feel better about MY understanding the content of the agreement. You made my day provided that your answer is not anything 'official' legally.
You are welcome.

Their attorney was the one that wrote the agreement. It reads exactly like this "I will not apply for emplyment at any family companies to be employed." And it lists each one of those companies specifically that I could not work as an employee.Sounds in your favor.

It gets more interesting. About 2 years ago, I had the same opportunity under the same terms and conditions as you noted above, that is to say, I had an agency and they were issuing a W2. In a week or so after I had started working there, they cancelled my assignment, who did, the agency? Or the COMPANY saying that they could sue me for 'breach of contract.' But they never actually did?

When questioned, this very attorney even said in HIS own email that I should talk to 'my employer' about the detail.Lol.

Having been tired of 'fighting against a big corporate,' I decided to let it go at that time but always believed it was a BS (excuse my language). Keep in mind, the COMPANY may not successfully hold YOU in breach, but they can easily tell your agency that they will not let you work for them, and there is nothing much you can do about that - it is the company's choice - and it can tell the agency, we will NOT do business with you if you decide to put HIM on the job....

 

Then, as for the settlement money, at the mediation, they told me that they would pay for my attorney and it was not taxable. I hope you had your own attorney review all - they do not have much of an obligation to you, since they represent the COMPANY and must look our for the company's best interests.

 

We, verbally confirmed with them more than a few times, that it was 'non-taxable.' That is NOT binding - your tax situation is YOUR business and that of the IRS, which is why you get a lawyer proficient in tax law to review it and determine if it is taxable, not just take the word for it by their attorney.


Then, after 12 hours of discussion, I finally agreed to the settlement amount.

Guess what, not only did they make me pay for my attorney but also they told me that I had to pay, which l ended up paying both anyway.You see?

This incident (being let go of the assignment in such a way) sent out some sort of message and since then I had a difficulty in finding a job in the area I reside. One of my previous employers even mentioned this incident and fired me for it.For what, for working through an agency at an employer that didn't want you there?

As you noted in your answer, I understand it would take a lot of work to prove a series of wrong doings they have done so far We weren't talking about their wrongdoings, we wer talking about whether YOU were breaching the contract by accepting agency work for an agency if that work necessitated being at the premises of the prior employer who you can't be employed by..... Nothing at all to do with an wrongs of anyone else...

 

even after the EEOC settlement, but if I may ask you of one more favor, I would like to know your personal 'opinion.' Didn't I give it, above?

Should I pursue some sort of 'retaliation' claim against the settlement?Why? Because they don't want you working on their premises? Anyone is free to hire or not hire anyone, generally speaking, so I am not seeing them as doing anything illegal here.


Should I go ahead and take this job opportunity? Personal choice - as you may have already experienced, it could come with extra baggage.....

 

It pays very well and I am very well qualified for the job.

Thank you in advance.You are welcome.



I hope this helps clarify for you.

Because I help people like you here, for a living---this is not a hobby for me---I sincerely XXXXX XXXXX abiding by the honor system with regard to Accepting answers, by Clicking your ACCEPT button now. Feel free to follow up after, if you need clarification. An ACCEPT also assures that I can assist you again. A BONUS is a wonderful way to tell the expert her time and effort are appreciated. I wish you the best in your future.
AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Employment Law
Satisfied Customers: 13,612
Experience: 19+ Years of Legal Practice in the Employment law arena.
Verified
AlexiaEsq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 6 years ago

Thank you for taking all these time to answer all of my questions. You make very much sense. I am now much clearer about what I can do or what I cannot do.

 

You are right in saying that the company could tell the agency that they would not keep their business if they decided to keep me on the company's premises.

 

The attorney I used for the mediation was not much of help in retrospect. She did not even give me any advice that the settlement money was taxable while she was sitting there at the mediation.

 

I cannot thank you enough now. Things are much clear now and I feel that some unfinished business has been given some sort of 'closure.' Thank you again.

After this, I will accept your answer with some bonus.

Thank you, and you are the kindest visitor I know! Thank you for that.
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