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mike067 · Feb 24, 2008, 05:02 PM

Hi everyone, I have a question I need help with.
My wife is employed by a cleaning business and she has worked there for 8 months now, this business employs no full time people but many casual, part time , on call women etc.
We recently registered our own business in the same industry, as my wife is well known and has a lot of contacts etc, and after we done all the hard work of setting up, my wife'just remembered' that her employer asked her to sign a document, referring to starting , or doing her own 'private work whilst employed for the 'other business.

Our problem is that this other business is for sale and the current owner is moving on in 2 months, whether business is sold or not, if it is not sold she will have some one manage it until sold.
My wife does not know what was in document as she can't remember, and she was not given a copy.
We are trying to figure out how we can obtain a copy for our legal people to look at this document... to see what was written in it.
The business we registered etc is in my wife's name, and one solution is we sign it up, re/new details so it is in my name(husband)?
As we figure that no matter what she signed, she can not sign on MY behalf?
To say I would not start my own, does my theory sound right?
OR how can I obtain a copy of this document without bieng obvious' that we may be starting our own, as my wife still works there and does not want to be obvious as to what she is doing.
I will appreciate any help, as this is very frustrating, and we need some guidance.
Kind regards Mike.

Fr_Chuck · Feb 24, 2008, 06:39 PM

You ask them for a copy, most likely it is a non compete agreement, and if she works or uses her contacts to help "your" bueinsss ( and don't expect it being in your name to fool the courts) then she can be in breach of her contract and you would owe them part of the profit from the business.

Have you looked at buying the businsess from this lady, perhaps for pay8ments or a percentage of profits.

mike067 · Feb 24, 2008, 06:53 PM

Originally Posted by Fr_Chuck

You ask them for a copy, most likely it is a non compete agreement, and if she works or uses her contacts to help "your" bueinsss ( and don't expect it being in your name to fool the courts) then she can be in breach of her contract adn you would owe them part of the profit from the business.

have you looked at buying the businsess from this lady, perhaps for pay8ments or a percentage of profits.

Hi, the owner of the business wants way too much as other people have told us, 180,000 we have thought about buying it but discounted it.
We just can't ask for a copy of the signed agreement as this will arouse suspicion, as the wife still needs the employment at the moment.
IS she entitled to or is she supposed to get a copy of anything that she signs when beginning with her employer?
Thanks for your help so far. Regards Mike.

Fr_Chuck · Feb 24, 2008, 07:42 PM

Yes, she should have asked for a copy when she signed it, so if she wants a copy she will have to ask. Normally it stops her from working for anyone else or starting her own business in the same field for a certain period of years .

excon · Feb 25, 2008, 06:54 AM

Hello mike:

If people didn't make mistakes in business, everybody would be rich. Certainly, everybody makes some mistakes, and successful business owners are no exception. The difference between them and losers is that they limit their mistakes. If you make too many mistakes, you'll lose too.

The fact is, you need to see that agreement. Yes, it was a mistake not to have gotten a copy when she signed it. Ok, that was then - this is now. Whether she's "entitled" to a copy is moot, at this point. Certainly, they'll give her a copy if she just asks. You need to see the agreement. I don't know how to tell you to get it without raising suspicion, but you've got to do it. If you're not sharp enough to get it, then you're not sharp enough to be successful in business.

excon

mike067 · Feb 25, 2008, 07:07 AM

Hi excon,
We spoke about it today,(MY WIFE AND I.
Someone else has a copy they got when they signed it, and they are going to pass it on to us. If they cant' find it, we have spoken about it and have decided to ask for a copy direct from them.. the manager,
I should have this within the next 2 days as soon as it is handed to me I will be intouch on site, thanking you for help to date, appreciate it.. regards mike

jp242 · Feb 25, 2008, 11:05 AM

When was she asked to sign this document? If it was after she was already employed, you might have an out that she received no consideration (usually comes in the form of additional compensation, a raise, promotion, etc.). Also, what state are you in? Non-competes are not valid in California, and other states have laws regarding them. I do not have a lot of legal experience with non-competes in that I have never tried to invalidate one, but I do know that courts will often invalidate ones that basically restrict a person to the point that they cannot work. If you go forward with your own business, I would steer clear of clients that are clients of the business she works for now. Look to establish new clients as this would help your case in court if it were to come to a lawsuit.

mike067 · Feb 25, 2008, 02:43 PM

Hi JP when my wife went to the owners house, she was given papers to get a police check done, and also was presented with this agreement document to sign.
After signing the document she actually started work 2 weeks later.. from the signed date.
She is only casual employee as all the workers are no one is full time..
We have no intentions of using her"current clientelle' for our own cleaning service, we are starting this from the ground up so to speak.. sourcing our own work/clients/ideas etc etc.
Today is the day we hopefully get a copy of this 'obstruction' I will let the forum know as soon as I get a copy..

Kind regards mike

mike067 · Feb 26, 2008, 02:25 AM

OK I have now in my possession a copy of the document signed, it reads word to word as follows::::

EMPLOYMENT AGREEMENT

Whilst in the employ of ************* you agree to:
* Always conduct yourself in a responsible, polite, courteous, friendly and proffessional manner.

* Your grooming will always be clean, tidy and well presented.Aneat and tidy uniform is required. You need to supply your own polo shirts in **** or **** color,to have logo's printed on at the ***** store.

*(logo's paid for) or an apron will be supplied for you to wear, if you prefer.

* A high standard of detailed,hygenic cleaning is to be maintained at all times.

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

*You will not take on any cleaning or attend any care work with any client of
********* cleaners for a period of 12 months after the date of your employment termination.

*You will be dilligent with the need to respect client confidentiallity at all times.

*This is for businesses, private homes and any other work that you are engaged to carry out.

*You are also required to keep confidential, any details or plans about *********
Cleaners as a business.

*Breach of this agreement or failure to abide by any policy guidelines will, without
Warning, result in the termination of your employment, with ****** cleaners.

mike067 · Feb 26, 2008, 02:27 AM

OK I have now in my possession a copy of the document signed, it reads word to word as follows::::

EMPLOYMENT AGREEMENT

Whilst in the employ of ************* you agree to:
* Always conduct yourself in a responsible, polite, courteous, friendly and proffessional manner.

* Your grooming will always be clean, tidy and well presented.Aneat and tidy uniform is required. You need to supply your own polo shirts in **** or **** color,to have logo's printed on at the ***** store.

*(logo's paid for) or an apron will be supplied for you to wear, if you prefer.

* A high standard of detailed,hygenic cleaning is to be maintained at all times.

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

*You will not take on any cleaning or attend any care work with any client of
********* cleaners for a period of 12 months after the date of your employment termination.

*You will be dilligent with the need to respect client confidentiallity at all times.

*This is for businesses, private homes and any other work that you are engaged to carry out.

*You are also required to keep confidential, any details or plans about *********
Cleaners as a business.

*Breach of this agreement or failure to abide by any policy guidelines will, without
Warning, result in the termination of your employment, with ****** cleaners.

excon · Feb 26, 2008, 05:03 AM

Originally Posted by mike067

You will not take on any cleaning or attend any care work with any client of ********* cleaners for a period of 12 months after the date of your employment termination.

Hello again, mike:

Well there you go. You said you weren't going to solicit their customers, so you're home free.

excon

mike067 · Feb 26, 2008, 07:06 AM

Hello excon, the 3 main sections apear to be these 3 I listed below..

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

*You will not take on any cleaning or attend any care work with any client of
********* cleaners for a period of 12 months after the date of your employment termination.

*Breach of this agreement or failure to abide by any policy guidlines will, without
warning, result in the termination of your employment, with ****** cleaners.

BUT WE WILL BE WORKING IN COMPETIOTION?

WE WILL NOT BE TAKING ON ANY CLEANING WORK ETC FOR A PERIOD OF 12 MONTHS After the DATE OF HER EMPLOYMENT IS TERMINATED..?

AFTER SHE IS TERMINATED?? so its OK to do it whilst employed

3RD... BREACH OF THE AGREEMENT OR FAILURE TO ABIDE BY POLICY...

RESULTS IN TERMINATION... NOT DRAGGED Through COURTS..? STRANGE.

The wording in the agreement apears to be ' made up at home and not done proffessionally, and the way I read it, we can start our own business with no legal hassles at all... am I reading this right??

excon · Feb 26, 2008, 07:28 AM

Originally Posted by mike067

with no legal hassles at all….am i reading this right????

Hello again, mike:

No.

You need to take the agreement in its entirety. And you need to look at it through a lawyers eyes. Here's how I would imagine a lawyer would see the provisions you bring up:

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

Your wife is a casual employee. In my view, an agreement that prevents her from pursuing her chosen career in her off hours would not be enforceable in court. If she were a full time employee, I believe the provision WOULD be upheld.

*You will not take on any cleaning or attend any care work with any client of******* cleaners for a period of 12 months after the date of your employment termination.

You said you will not be soliciting HER clients, so this doesn't apply.

*Breach of this agreement or failure to abide by any policy guidlines will, without warning, result in the termination of your employment, with ****** cleaners.

Your wife didn't breach in my view.

However, just because I think you could win, doesn't mean that they won't try to sue you anyway and stop you from going into business. People don't always do the RIGHT thing.

excon

jp242 · Feb 26, 2008, 07:52 AM

Originally Posted by mike067

Hello excon, the 3 main sections apear to be these 3 i listed below..

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

*You will not take on any cleaning or attend any care work with any client of
********* cleaners for a period of 12 months after the date of your employment termination.

*Breach of this agreement or failure to abide by any policy guidlines will, without
warning, result in the termination of your employment, with ****** cleaners.

BUT WE WILL BE WORKING IN COMPETIOTION?

WE WILL NOT BE TAKING ON ANY CLEANING WORK ETC FOR A PERIOD OF 12 MONTHS AFTERTHE DATE OF HER EMPLOYMENT IS TERMINATED...????????????????

AFTER SHE IS TERMINATED??????so its ok to do it whilst employed

3RD... BREACH OF THE AGREEMENT OR FAILURE TO ABIDE BY POLICY...

RESULTS IN TERMINATION.......NOT DRAGGED THRU COURTS...???? STRANGE.

the wording in the agreement apears to be ' made up at home and not done proffessionally, and the way i read it, we can start our own business with no legal hassles at all... am i reading this right????

First off I bet she is an employee at will and could be terminated any time the employer wants, so don't freak out over the termination part.

How many hours does your wife work on average for this employer? Does she get benefits? Is she paid by the hour or by the job? Personally, and take this from an attorney that has very very limited experience in this particular area, I do not think this agreement would hold up in court. Courts do not like to enforce NCA's that are general to all employees and are meant to restrict all employees vs. protect a company's interest. I think the portion about using a client from the current employers client list would be valid since that could be argued as propriety information.

And yes, they would terminate without going to court. There is no reason for them to waste the money on court costs when firing her would be free. You can start your business in your name, but I would avoid having her work for it as an employee if you cannot afford to have her fired.

mike067 · Feb 26, 2008, 08:07 AM

Hi JP she is casual as all employees are, there.
She gets around12-14 hrs per week sometimes less.
She is paid per job .at a rate per hr.
There is no benefits. At all.

The business is registered in her name at moment, but is not underway in work etc(on standstill.

She will leave this job, to start operating ours, so technically the business is hers(manager operater, and I will be working along side her,

THANKS FOR YOUR HELP SO FAR ITS GREAT...
REGARDS MIKE.

excon · Feb 26, 2008, 08:30 AM

Originally Posted by mike067

She gets around12-14 hrs per week sometimes less.

Hello again, mike:

That is exactly why this provision won't be held up. It begins, whilst in our employ...

*You will not privatly work for yourself (as a cleaner or a carer) in competiotion with ********* cleaners.

The employer is trying to prevent her from working in her chosen profession - yet he's only willing to give her minimal hours. If he can't give her full time work, then he can't prevent her from seeking hours elsewhere on her off time.

To control her off time like that would be tantamount to slavery. The provision is unenforceable on its face.

excon

mike067 · Feb 26, 2008, 08:36 AM

Excellent, thank you so much for all your help, you have taken away my stress,lol
I will show the letter to my solicitor just to read and confirm, thanks again, regards mike

jp242 · Feb 26, 2008, 07:44 PM

Originally Posted by excon

To control her off time like that would be tantamount to slavery. The provision is unenforceable on its face.

excon

That is not true. It is actually the basis of many valid non-competes to control where employees work so that trade secrets are not shared and clients are not stolen. The difference between a valid NCA and this one is that I think the employer would be hard pressed to show that your wife has a special skill that would be a good basis for an employer wanting to keep her from being poached. As much as I am sure your wife is a wonderful house cleaner (much better than me, trust me ;) ) her skill is akin to a skilled laborer and rarely could she be kept from working in her time off since she is not a full time employee. Stay away from any conflicting clients for the next 12 months and you should be in good shape.

Also, here is a good article on NCA that I found that might help you out:
Noncompete Agreements

NOLO is a great resource for good legal advice on a variety of subjects when you just kind of need a refresher and don't want to pay a lawyer for advice.

JudyKayTee · Feb 27, 2008, 04:00 PM

Originally Posted by jp242

That is not true. It is actually the basis of many valid non-competes to control where employees work so that trade secrets are not shared and clients are not stolen. The difference between a valid NCA and this one is that I think the employer would be hard pressed to show that your wife has a special skill that would be a good basis for an employer wanting to keep her from being poached. As much as I am sure your wife is a wonderful house cleaner (much better than me, trust me ;) ) her skill is akin to a skilled laborer and rarely could she be kept from working in her time off since she is not a full time employee. Stay away from any conflicting clients for the next 12 months and you should be in good shape.

Also, here is a good article on NCA that I found that might help you out:
Noncompete Agreements

NOLO is a great resource for good legal advice on a variety of subjects when you just kind of need a refresher and don't want to pay a lawyer for advice.

Just my two cents but I see no connection whatsoever between her employment status - full time or part time. State Courts are throwing out non compete contracts all the time because in theory an employer could terminate you at will and starve you to death under a non-compete clause. I can only speak for NY but a non-compete is either legal and enforceable or not, part time or full time notwithstanding.

Many non competes are not written because of fear of losing a "skilled" employee; they are written to keep company "secrets" from walking out the door and being shared - and cleaning personnel undoubtedly know where some of the bodies are hidden.