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 Issue with IT consultancy
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Posted on 09-17-19 2:52 PM     Reply [Subscribe]
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Namaskar Sabai Lai,
I am currently working as a contractor for IT consultancy. I have been working with them for almost 4 years. I got my green card through this IT Consultancy. My current contract for my current client Im working for was supposed to end on October 30,2019. But my client offered me full time position and I already accepted the offer.
I told my consultancy that I accepted the offer with my client. Now, My IT Consultancy is telling me I cannot work for client because this is directly against their non-compete agreement that I can not work directly for the client or the vendor.
I had a signed non-compete agreement which states as below. Please anyone that has been through this experience tell me..what you be the best thing for me to do in this situation? I don’t want any future legal hassle with IT consultancy and I want to leave them in good terms.
I would like to thank all of you good people in advance for your valuable input.

Have a wonderful day you all.

One of the clause from the contract that I signed:

e. Non-competition and Non-Solicitation:
i. Employee recognizes and acknowledges that the
Company’s business is built upon the confidence of the customers/clients and that all goodwill arising out of the Employee’s acquaintances with customers/clients shall be the sole and exclusive property of the Company;
ii. Employee hereby acknowledges and agrees that the Company would suffer irreparable injury if Employee accepted employment with a customer, client or vendor of the Company, diverted business from the Company or solicits or accepts business

from clients, customers or vendors of the Company. As a material inducement to the Company to enter into this Agreement, Employee hereby covenants and agrees that, during the period beginning on the date hereof and continuing for a specific period of time after termination of Employee’s employment with the Company Employee shall not:
1. Directly or indirectly, on his own behalf or on the behalf of another business, engage in or assist in providing services similar to the services Employee has provided through Company at any client location or client work site at which Employee was placed by Company. This includes any services, for which Employee provided services through Company, or to which Company introduced
or
about which Company information regarding potential employment or
Employee,
provided
employment,
contractor opportunities to Employee;
2. Directly or indirectly, divert business from Company or its successors, assigns, or solicit business from, accept business from, divert the business of, or attempt to other methods of using the same or similar services as provided by Company, any client, customer, vendor, or account of Company; or
3. Directlyorindirectly,solicitforemployment, employ or otherwise engage the services of,
any representatives, contractors, employees, distributors or consultants of the Company or its successors or assigns.
iii. The length of the restrictive covenant detailed above will begin on the date hereof and continue for one (1) year following termination of employment.
iv. In view of the irreparable harm and damage that would result to Company as a result of a breach by Employee of the convenants in this Paragraph 5, and in view of the lack of an adequate remedy at law to compensate Company for such harm and damage in the event of a breach or threatened breach by Employee of those covenants, Company shall have the right to receive, and Employee hereby consents to the issuance of, temporary and

permanent injunctions enjoining Employee from any violation of said covenants. In the event that a bond or other undertaking is required of Company in connection with the issuance of a temporary injunction, Employee agrees to waive the bond.
v. The provisions of this Paragraph 5 shall be enforceable in law and in equity notwithstanding the existence of any claim or cause of action by Employee against Company whether predicated in the Agreement or otherwise.
vi. The provisions of this Paragraph 5 shall supersede and replace any and all previous non-competition clauses of Company to which Employee agreed to be bound.
vii. Employee has carefully read and considered the provisions of this Paragraph 5 and, having done so, agrees that the restrictions set forth in such Paragraph are fair and reasonable and are reasonably required for the protection of the legitimate business interests of Company. In the event that a court of competent jurisdiction shall determine that any of the foregoing restrictions are unenforceable, the parties hereto agree that it is their desire that such court substitute an enforceable restriction in place of any restriction deemed unenforceable, and that the substituted restriction be deemed incorporated herein and enforceable against Employee. It is the intent of the parties hereto that the court, in determining any such enforceable substituted restriction, recognizes that it is their intent that the foregoing restrictions be imposed and maintained to the greatest extent possible. The foregoing shall not be interpreted to limit any party’s right to appeal.
viii. The obligation of Employee under this Paragraph 5 shall survive the expiration or termination of this Agreement for any reason.
ix. Company’s failure or refusal to enforce any of the terms contained in this Agreement against any other employee or former employee, for any reason, shall not constitute a defense to the enforcement of this Agreement against Employee.
 
Posted on 09-17-19 10:43 PM     [Snapshot: 196]     Reply [Subscribe]
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I faced the same issue many years ago. Try to convince them and agree to pay the settlement cost.
 
Posted on 09-17-19 11:04 PM     [Snapshot: 217]     Reply [Subscribe]
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Thank you for the response sm5275 brother,
From your experience,How much would be the reasonable settlement amount for me to pay/negotiate with  them?
I have consulted with some of my friends and Im getting mixed answers. Some of them suggested me to ignore the consultancy calls/emails and some suggest me to negotiate with consultancy like yourself.None of them have been through this exact situation like me.
Would there be any legal issues if I avoid their calls/emails? Or Could they contact my current client(employer) and cause issue with my job?
I have middle vendor as well. Can I just ask my current client(employer) to send termination letter of my contract to middle vendor? As far as I know..Consultancy doesn’t have direct contact with client(employer).

Thank you again
Last edited: 17-Sep-19 11:05 PM

 
Posted on 09-18-19 8:42 AM     [Snapshot: 322]     Reply [Subscribe]
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हुनत ७ बर्ष जति भयो होला मैले consultancy छोडेको तर मेरो situation अलि तेस्तै नै थियो | मैले चै तिनीहरुलाई client ले फुल time offer गर्यो भनेर चै भनिन | contract नसिधुन जेल काम गरि अनि client ले middle vendor लाई contract सिधियो भन्यो अनि पछी client संग काम गरे | constultancy लाई नि थाहा भएन एंड लेफ्ट इन गूद terms विथ प्रपर exit interview | contract sign गरे पछि त लिगल्ली binded हुन्छ तर depends on इफ they really वान्त तु गो आफ्टर इउ |
 
Posted on 09-18-19 10:14 AM     [Snapshot: 373]     Reply [Subscribe]
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First question - what state do you work in? Doesn't matter where you live.

Each state has its own unique laws and rules about whether, when and to what extent a non-compete agreement is enforceable.

The majority of U.S. states recognize and enforce various forms of non-compete agreements. A few states, such as California, Montana, North Dakota, and Oklahoma, totally ban non-compete agreements for employees, or prohibit all non-compete agreements except in limited circumstances.

Please read the following. You can google for more.

https://www.hrexaminer.com/is-your-non-compete-agreement-enforceable/

https://www.katzlawgroup.com/non-compete-agreements


 
Posted on 09-18-19 10:48 AM     [Snapshot: 394]     Reply [Subscribe]
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@BeaultifulNepal,
You got good questions but I can only answer a few based on my experience. You can continue to ignore them until you get served with the legal notice from the court. So, it's up to them on how much they want to fight. For the details on the settlement, please DM me.
Also, as others have mentioned, it also depends on the State of your employer. Not all the states have "non-compete agreement"
I feel I went through the same issue as yours and can certainly share my experience.
Also, I do not really know how the contracts work with vendors and clients, so I cannot answer that.
 
Posted on 09-18-19 1:13 PM     [Snapshot: 477]     Reply [Subscribe]
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Most of us have been through this. Have your vendor end the contract. Take two weeks off and then start full time. In the mean time block all communication with the consultancy. Do not reply any thing over email, from their "lawyers".
Legally you have to be served to be sued. That has to happen in person.

They also have the burden to prove their losses. In this case, your contract ended at the end of project. Depending on the state you live and work, non compete even may not be enforceable. They cant prevent you to work and earn a living.
INAL, accept employment, take two weeks break. Then ignore all their calls.
 
Posted on 09-18-19 3:02 PM     [Snapshot: 523]     Reply [Subscribe]
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@ Stylish, riya77, sm5275 & maxpayne: Thank you hajur haru sabailai for taking time to respond to my issue. I really appreciate hajur haru ko time and input.
@riya77: Unfortunately, I live in New Jersey. And I read online and found out non-compete agreement is enforced here. Thank you again for the link.

@sm5275 : Huss...I will dm hajurlai. Thank you again hajurlai pani

@stylish : I wish I had not told them and the process would be much easier I guess. Thank you for hajur ko input

@maxpayne: Huss..I will wait if i get any legal notice before I take further action.

Dhanyebad hajur haru sabailai once again.

Last edited: 18-Sep-19 03:04 PM

 
Posted on 09-20-19 3:52 PM     [Snapshot: 727]     Reply [Subscribe]
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Namaskar sabai janalai pheri

Update on my case: I have been getting numerous calls/text/emails from Consultancy. I tried to ignore them but they have reached out to me in viber,Watsapp and in all my social media accounts.
I couldn’t take it any longer so I went ahead and send them email asking what would be the resolution to resolve this issue. Lets see what will be their terms and conditions. I hope their terms and conditions is not to harsh 🤞 🤞.

Thank you again for all of you who took their valuable time for suggestions.


 
Posted on 09-20-19 10:25 PM     [Snapshot: 829]     Reply [Subscribe]
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If its more than 5 bucks, dont do it.
A lawyer consultation is cheaper than paying 10-15K which they will ask.
 
Posted on 09-20-19 11:18 PM     [Snapshot: 850]     Reply [Subscribe]
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If you live in CA, California banned non-compete agreement.

https://www.huffpost.com/entry/understanding-californias-ban-on-non-compete-agreements_b_58af1626e4b0e5fdf6196f04

https://www.upcounsel.com/non-compete-california
 
Posted on 09-21-19 11:44 AM     [Snapshot: 946]     Reply [Subscribe]
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@maxpayne brother: Huss..Im willing to pay 15-20K because yo job maintain garna dherai nai dukha garirako chu. I went and consulted with lawyer. They say I will be breaching my contract so to come out clean I will have to push back my start date or settle with the consultancy. I don’t want to push back my start date. I will update you on what they will ask for.
Thank you again for your input.


@Chinday brother: Unfortunately, I live in New Jersey and non-compete agreement is enforced here.
Thank you hajurlai pani for the info.
 
Posted on 09-26-19 10:40 PM     [Snapshot: 1148]     Reply [Subscribe]
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Namaste sabai janalai pheri pani,
Update on my Case:
As you all already know ..I sent an email to Consultancy asking for the resolution but instead they replied me with “Our legal Team would pursue legally related to your case of absconding and failure to comply our contract of non-solicitation. ”

I sent an email again asking to consider an agreement to resolve this issue between us and not to take it to court. But it has been 3 days already and they haven’t replied to my email yet. I have no idea what do they actually want from me? Should I wait for them to take legal action against me? or Should I call them and try to talk to them? The reason Im not calling them is I want to have every conversation between us to be saved just incase they take legal action against me.

I have talked to my lawyer but he is not very helpful. He just want me to push back my start date. I don’t think my employer would allow me to push back the start date because we have tons of work that needs to be completed before the release of our beta version.
I would be grateful to you guys if you could please suggest me the best option as of my current situation.

Dhanyebad hajur haru lai pheri pani..yaha haru ko suggestions ko apekchya gardachu.

 
Posted on 09-29-19 10:06 AM     [Snapshot: 1341]     Reply [Subscribe]
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I also had a lawsuit with consultancy located in Pennsylvania. Although the state allowed non compete agreement, the judge denied non compete based on the fact that there were no trade secret of the company that would trigger non compete. But we ended up settling with about 18000 payment to consultancy and 11000 payment to lawyer fees totaling about 29000 dollars. The lawyer is the best person who can decide the cheapest and best case of winning or paying least money.
 
Posted on 09-30-19 12:04 PM     [Snapshot: 1504]     Reply [Subscribe]
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consult a good lawyer bro
 


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