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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5734
Experience:  Exclusively practice labor and employment law.
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I believe that my question spans 2 areas of law--employment

Customer Question

I believe that my question spans 2 areas of law--employment and elder law. My parents' 2 regular private caregivers were fired by the agency that employs them for reasons that my family does not agree with. We were thoroughly happy with the care they provided for our family and I feel that replacing them after all these years (one has worked with them for 4 years and the other 3 years) will cause undue stress to our family and accelerate my parents' decline and increase my stress level.
THe agency providing the caregivers is housed in and a partner business of the senior community (continuing care model) where they live--my dad in an independent living apt.with full-time caregivers (one 3 overnights per week and the other 4 overnights per week) and my mom is on the full-time nursing care floor who is wheelchair bound and has dementia. The caregivers work primarily for my dad but have been billed to take care of my mom2 hours per day to allow them to take my mom off the nursing care floor to visit my dad in his apt. on a daily basis
The company has a non-compete clause in their contract and has a policy of not allowing terminated employees in the building.
They were fired for time clock issues and not for endangering anyone in the building--neither my parents nor anyone else there.
We would like to hire them ourselves or through another agency. If the family and/or my parents' doctor feels that this forced separation from their caregivers would cause them harm, will ther non-compete and no entry policies hold up in court, or does my parents' well-being trump the personnel policies they have laid out?
Submitted: 2 years ago.
Category: Employment Law
Expert:  John replied 2 years ago.

Their non-compete is in all likelihood not enforceable because the constraint of what is essentially minimally skilled laborers that do not have access to things such as patents, formulas etc. is merely stifling competition, rather than being for any business related reasons. But the business can baressentially anyone from their building.

For a non-compete agreement to be enforced an employer must show reasonableness, in that (1) it has a legitimate business interest sufficient to justify enforcement of the non-compete clause; (2) that the clause does not cause the former employee undue hardship; and (3) that enforcement of the clause will not be harmful to the public.

Under this three part test, courts consider several factors when determining whether a non-compete agreement is reasonable, including: (i) how long the restriction lasts and the geographic area that the restriction covers(generally no more than 2 years and reasonable local area will be reasonable),(ii) whether the employee was the sole contact with customers, (iii) whether the employee possesses confidential information or trade secrets, (iv)whether the covenant operates to bar the employee's sole means of support, (v)whether the covenant seeks to stifle the inherent skill and experience of the employee, (vi) the likelihood that the employee can find other employment if the restriction is enforced and (vii) whether the benefit to the employer is disproportional to the detriment of the employee.

The underlined factors support the agreement not be enforced, but that they were the sole caregivers is one factor that would work against them. In any event, any private entity can bar any former worker from entering the premises if it wishes...regardless of enforceability of non-compete. Thus, if you want them to continue you to care for them in those facilities, there is no chance of that. In another facility however, it is probably possible, but they would have to have the non-compete ruled unenforceable by a court.

Expert:  John replied 2 years ago.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, ***** ***** wish you all the best with this matter.

Expert:  John replied 2 years ago.

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Customer: replied 2 years ago.
I didn't see your response this morning and I received a call from the CEO of the place and he is working on getting their rules changed to allow the caregivers to enter the building and take care of my parents if they are hired directly by our family. (I don't know if it was fear of liability if something happens to my dad or it was compassion or fear of word on the street or a combo, or something else, but this are in progress without a lawsuit. I feel that your response was earnestly generated and I hate to not pay you for your work, but I didn't see indication this am that it had arrived so I sent an email saying that help was no longer needed and asked for a refund. I don't want to be unfair to you, but the part about endangering the life of my dad by causing him avoidable hardship was not addressed, and I believe that this is the part of the "case" I presented to the executives that got them to change their mind. For this reason, your answer was not helpful because it's the damage that it could potentially cause my dad and the repercussions that seemed to get their attention. This is why I did not want strictly an employment perspective and for that reason, if I had read it earlier it would not have moved my situation forward. This is why I am asking for a refund. It really was not helpful in any practical way for me in that it did not address the issue of denial of entrance causing a vulnerable elder to possibly die.