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 issue with purano consultancy(x-employer)

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Posted on 08-11-15 3:51 PM     Reply [Subscribe]
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Hi Guys,
I have a situation which I had already in one thread last month. Its about the payment from dhoti consultancy.
Dhotile malai bonus dinchhu vanera diyena ani aru ni issue vayera maile resign gare tesbata ani mero sabai amount release gar else DOL ma complain garchhu vaneko the. Mero resignation July 5th bata sure hunewala thiyo. After several heated dispute, he had agreed to release my amount on July payroll but so far he hasnt.
In the same time, I resigned from him but uslai thaha nadikana Vendor saga kura milayera same client ma kaam garirakhe. Maile non competent sign gareko theiye jasma I can not work with same client and vendor vanne thiyo. Aba malai dar chai teslai paisa magna strongly present huna sakeko chhaina becoz of the fear that I also breach contract.
tesle mero atleast 10K dina chha without bonus.
Really appreciate if you give me some suggestions.
 
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Posted on 08-11-15 5:05 PM     [Snapshot: 76]     Reply [Subscribe]
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@sojoketo,
client never hires from them as they r 3rd layer and already one dho** and khaire was in between
 
Posted on 08-11-15 8:22 PM     [Snapshot: 215]     Reply [Subscribe]
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@ Sajha keto, making myself clearer. They will have to pay your pending salary. There is no way they withhold your salary. That is illegal. An easy DOL case.

The issue of Non-compete is different. Possibly, you told the dh*** company that you have already quit the job and now you need your remaining salary. They should pay it. They will pay. Question is - do they know you are still working for the same client? Layers and layers of vendors would not make a difference if your non-compete clause explicitly mentions that you, as ABC's employee (dh*** company), is not allowed to work for the client introduced by ABC. Which may categorically forbid you to work for that client. Say, client is Bank of America, Vendor is IBM, sub-vendor Tamilnadu Enterprise, their sub-vendor Rama Naidu Company and then their sub-vendor (i.e., your employer) ABC. In court, their claim will be that, per your employment contract, ABC introduced both Bank of America and IBM to you. So, by working for Bank of America or IBM you violated their non-compete clause. Actually, if you go through the full fledged litigation process, courts might interpret your employment agreement based on what is written and the circumstantial evidence. So my interpretation may be wrong as well because I settled out of the court and did not had chance to see what the judge would decide. Point being, these are all costly process. I doubt dh*** company will go all in. But be on the side of caution.

Do you suspect that they might know you are still working for the same client / vendor?
 
Posted on 08-11-15 8:37 PM     [Snapshot: 227]     Reply [Subscribe]
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@kalidasbhaisaab
I understand what you mean. They may not know but the point is I always feel like they might be following me, they might be tracking me or so. I had heated dispute on email last month when I said I am going for DOL and finally it was settled when they said that they will check all account and run the remaining amount per law on July payroll. Then I was silent till yesterday (Normally I used to get salary on first week of each month.)
Last week, they called me, I dont know why they called me but I did not picked up the phone. There was no VM left. Then I sent yesterday asking about payment. No response yet.
Today that guy again sent me text nicely saying how r u, howz ur project going on bla bla...I did not respond. My new employer has already started marketing as I asked them to look new project. Though I do not want to leave this client and also I am the crucial member of team, I have good repo too in client location, I feel like I always have to live with fear if I continue working here. So, decided to leave (though havent said client before getting new project).
Also, middle layer had also cheated to main vendor saying that I am the regular employeer of middle layer in written form so there should not be any barrier from middle layer until and unless middle layer cooperates with my x employer (both dho** so there is chance though).
Also, this dho** had hired me as trainee and then software engineer but they sent me in client location modifying my resume (adding 7 years US experience) and I have proof of that. So, if go to file case, would it also be my strong point?
Its long but would appreciate if you read all and suggest as you seem coming from same boat.
 
Posted on 08-11-15 8:56 PM     [Snapshot: 249]     Reply [Subscribe]
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IMO, If you were F1, CPT, OPT, H1b etc there was a chance that they would forget it. Nobody wants to open the can of worms, especially dh*** companies who eat shit. When we are in OPT/CPT/ H1b there are lots of things going on - d** resume, h1b money, their lying to main vendor about you being Tamil Nadu's employee rather than ABC's etc etc. But with GC they know that ultimately you will quit their company so they try to write their non-competes by consulting an Attorney. E.g., how IBM writes non-competes so that you cannot go to Accenture while working for Bank of America at the same time. I mean their employment agreements are all the same but with their employees who have GC (i.e., who did not go through their h1b/GC process) they may tend to use black and white letter of the contract. If you know what I mean. You have strong points in that you are saying you can open their can of worms. Either you talk to them and find out what are they up to. They are not going to sue you for non-compete just like that. There is a process involved. They will have to send you notice first. But the longer you stay with the client the damage claim might be more. Better talk to them to find out what are they up to. If you like this client and want to stay with them (because you may make a career with them) then definitely talk to this dh*** company. Find out (indirectly) if by giving few thousand bucks (like ~2k-3k) they will release you from any indemnity. Something in this line. But if you continue to work with client, covertly, then you are always psychologically fearful.
 
Posted on 08-12-15 7:53 AM     [Snapshot: 383]     Reply [Subscribe]
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@kalidasbhaisaab,
Thanks for all the information. I to want to know why they approaching me these days but they havent called me again. So, thought of leaving same client and then I will go to DOL
 
Posted on 08-12-15 8:41 AM     [Snapshot: 409]     Reply [Subscribe]
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SajhaKeto,
First I would like to tell you not to be sacred. You have not committed any crime here, you have right to choose any employer and right to quit job any time.
Second there is not only bad things going to happen to you only but to the consultancy as well if you both decide to go to court. There are plenty of things done by consultancy that they worry about too.
Third lets discuss your situation. If I understood correct there are several layers of vendors involved between ur ex-employer and client. let's say
A is your employer
B is one layer
C is prime Vendor
D is Client.
There is never any relation between D and A, C and A or D and B or any contracts. Your employer deals with only one layer ahead of it. So with which layer you signed non-competent contract.? In most case if you had any non-competent contract signed that will be between consecutive layer. In your case between A and B. Now If you are working for B then your non-competence contract comes into effect, if you are not working for B then you can say F*** u to your ex-employer.
If you are working for B then you need to act smart. Avoiding phone calls or communication does not get you out of the mess. So you need to communicate with them via email ( so that you have all the proofs in case you need them in future). Try to less communicate over the phone or record the conversion ( but need to let them know some way that you are recording the conversation). Try to communicate in most professional way. And have good employee right attorney if required.

P.S: Above is not a legal advise.


 
Posted on 08-12-15 8:56 AM     [Snapshot: 444]     Reply [Subscribe]
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long_horn,
Thanks for the details. Yes, you are right, my employer was A and I signed non competent with A but that had terms like if I can not work with any vendor, client for which I have started my job at least up to one year of resignation.
As there are so many layers, they do not have direct link with client and vendor. Further, Middle layer already breach the contract with vendor saying me as middle layer's employee so middle layer can not do anything to me. Only thing is based on that non competent doc that i signed, whether they can file a case or not.
I know they have done so many illegal stuffs but I have proof of resume modification.
 
Posted on 08-12-15 9:27 AM     [Snapshot: 479]     Reply [Subscribe]
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Can you copy/ paste, here, the specific Non Compete Clause from your Contract? You can redact the PI data.
 
Posted on 08-12-15 10:12 AM     [Snapshot: 521]     Reply [Subscribe]
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@kalidasbhaisaab,
Please see below:
(a) Non Compete. Employee agrees that during, and for a period of one year after the termination
of Employee's association with ABC, Employee shall not engage in systems design, consulting service or
the business of technical staff augmentation with respect to any of its client for which ABC has
performed services pursuant to an agreement or understanding with ABC or with respect to which
Employee obtained or had access to trade secrets, proprietary data or other confidential information of
ABC.
(b) Covenant Not to Solicit. Employee agrees that during, and for a period of one year after the
termination of Employee's association with ABC (whether or not such association is by virtue of
Employee's association with ABC), Employee will not perform services or design, develop, manufacture,
or sell products to or for its current clients (or assist others to conduct such activities), whether or not
such clients are located within the geographic restriction set forth in (a) above, to the extent that such
products and services compete with products sold or services performed by ABC;
(c) Covenant Not to Induce. Employee agrees that during, and for a period of one year after the
termination of Employee's association with ABC, Employee will not solicit or induce an employee of
ABC to terminate his employment with ABC (or assist others to conduct such activities).
If the Employee violates any of the above-mentioned terms, he/she shall be liable for the liquidated
damages, in the amount decided by the ABC
 
Posted on 08-12-15 11:10 AM     [Snapshot: 557]     Reply [Subscribe]
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Could you tell in which state did you worked?
I had similar issue and I was in California where such non-compete and non-dispute agreements are null and void.
Unless, I know their trade secret or some patents, I can't harm their business so those agreements doesn't apply to us.
 
Posted on 08-12-15 11:11 AM     [Snapshot: 548]     Reply [Subscribe]
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You do seem to have a recourse. Like mentioned above by long_horn, client was not introduced by ABC so contractually there is no direct evidence that u violated clause (a) or (b). Plus, these are gray area expensive cases. IMO they are too cheap to pull that trick. You stand ur ground. Btw, is it ASCII Group LLC?
 
Posted on 08-12-15 11:47 AM     [Snapshot: 602]     Reply [Subscribe]
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@Phoolbari
they in MI and client in VA.
@kalidasbhaisaab,
Its not ASCII Group LLC.

So, what you guys think? Should I go to DOL for remaining payment? Anyway, I think I will be leaving client by the end of this month if get the project so even if they file case, it may not affect me
 
Posted on 08-12-15 11:55 AM     [Snapshot: 610]     Reply [Subscribe]
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No one can and should keep your hard earned salary. Paisa tyasle jasari ni dinai parcha. You have a clear cut DOL case which you WILL win.
 
Posted on 08-12-15 4:47 PM     [Snapshot: 664]     Reply [Subscribe]
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@kalidasbhaisaab,
I just received paystub from them on which they have paid me far less amount than exact amount. I have calculated the amount which I am again thinking of sending them last time before proceeding to DOL. Below is the total amount I am claiming though bonus is provided at the discretion of the manager (means they wont pay for sure). Can you please check the data below for which I am eligible or not. 
10 days paid vacation based on old rate=36.46*8*7.5(for 9 month:April to December)=$2187.6 july=16*45=$720 
Starting Jan (new agreement):
 Jun=176
 May=160 
april=176 
March = 176
 Feb=152 
Jan=72 
Total hours =912 
Total amount at the rate of $5/hour=912*5=$4560
(Note: for this $5/month, Agreement is like below:
term#2: $5/- per hour to a maximum of approved timesheet hours per month will be paid as an expense paid a month after expense report is submitted for the first three months of the contract. 
term#3. After first three months of contract, a bonus of $10,000/- will bepaid after a year of service and based on the performance review and at the discretion of the manager)
Amount deducted for insurance :$123.82 (My insurance was closed by the end of Jun)
 Bonus = 7500 (up to December) -1500 (paid in October)=$6000 (I am sure they wont pay this) 
Total= $11403.82 
Total paid in July payroll = $2220
Net Amount to Pay =$11403.82- $2220 = $9183.82

Also, I was in touch with a lawyer who was recommending me to go for DOL. I will again follow up with him but as you were in same boat at some point so wanted to know your views

Last edited: 12-Aug-15 04:49 PM

 
Posted on 08-13-15 7:01 AM     [Snapshot: 763]     Reply [Subscribe]
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You have legitimate claims. Probably, you don't have to put Insurance Deduction info in the DOL Claim form because your Paycheck already shows that.
Basically, you have the Contract letter showing about rate of pay and bonus arrangement and then you have actual Paychecks. Rest of the math is self explanatory. Good Luck!
 
Posted on 08-13-15 7:36 AM     [Snapshot: 781]     Reply [Subscribe]
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KALIDASBHAISAAB
thank you for following up till the end. I admire people who helps people in need.
Just wondering how come you are 6.1? :)
 
Posted on 08-13-15 7:52 AM     [Snapshot: 796]     Reply [Subscribe]
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You doubts are genuine, I am not 6.1 I am rather 5.7 but a little exaggeration goes a long way. Good luck and keep us posted.
 
Posted on 08-13-15 11:29 AM     [Snapshot: 870]     Reply [Subscribe]
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KALIDASBHAISAAB,
Thanks a lot for your input.
@sojoketo,
what is this 6.1 and 5.7?

 
Posted on 08-13-15 1:59 PM     [Snapshot: 938]     Reply [Subscribe]
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sajha keto की त मान्छेको height हुनु पर्छ की त तेही मान्छेको लिङ्ग को height हुनु पर्छ 
 
KALIDASBHAISAAB
was in reference to the profile details
Last edited: 13-Aug-15 01:59 PM

 
Posted on 08-13-15 3:55 PM     [Snapshot: 972]     Reply [Subscribe]
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LOL
Anyway, Thanks a lot guys....gonna send dho** a final email giving 48 hrs notice and saying that I am approaching DOL for not paying based on contract. I will keep you posted and hope you guys respond in coming days too :)
 



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