IT Consultants, Personnel Recruiters and Non-Compete - Non- Solicitation Agreements in Pennsylvania

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I am a Personnel Recruiter: Is My Non-Compete - Non-Solicitation Agreement Enforceable?

Over the years, the business of IT Consulting has expanded and expanded so that, today, many companies routinely retain temporary workers who are IT specialists under a contract with a personnel supply firm.

This typically results in two separate contracts: 1) a contract between the end user (the company requiring manpower) and the recruitment firm wherein the end user agrees to pay the recruitment firm a fee over a fixed period of time in exchange for provision by the recruitment firm of temporary workers needed to complete a given project; and, 2) a contract between the recruitment firm and individuals who agree to go to the end user for a specified time frame and provide services on such projects pursuant to an independent contractor agreement.

In other cases, recruitment firms provide permanent employees to corporate clients and are paid a one time fee.

This Post is not intended to discuss the overall enforceability of the non-compete agreement between you and your former employer.  Rather, it is designed to address two common issues faced by employees who, having found work subsequent to leaving their former employer, desire to understand the boundaries for contacting candidates and clients of their former firm.

Click Here to read our Post on general rules relating top the enforcement of non-compete agreements in Pennsylvania.

I Have Been Recruiting IT Candidates for Years: May I Contact Them After I Leave My Pennsylvania Employer?

Over time, people who work for recruitment firms develop relationships both with candidates (i.e. individuals potentially suited for various positions) and clients (i.e. corporations who require candidates).  Most people who work as personnel recruiters are required by their employers to execute non-compete agreements as a condition of employment. 

Upon departing from employment to strike out on a new venture, such persons often call me and ask: can I contact the candidates that were part of the data base of my old firm?  The answer is: a qualified yes.

If you can locate, identify and contact such candidates via social media such as Facebook, Linked-In, etc., then you are likely going to be fine.

However, one may not utilize the data base of a former employer to identify and contact such candidates.

Human Resource Consultant: May I Contact the Clients of my Former Employer if I Have a Non-Compete or Non-Solicitation Contract in PA?

In the context of the subjects discussed in this Post, contacting and/or doing business with corporate clients who purchased manpower from your prior employer is a much dicier proposition for persons bound by non-compete agreements.  That is so because corporate clients are the ones that pay recruitment firms for the candidates they provide.  Hence, any time a former employer learns that its former employee is doing business with one of its corporate clients, a dispute will likely blossom.

Here is one rub.

The IT field is extremely specialized, yet the vocabulary used to identify the specializations remains undeveloped.  Hence, the prohibitions in a typical non-compete agreement in the IT consulting industry are usually overbroad, and thus, paradoxically, vague.  For example, your old employer recruited only software engineers.  Does that mean that you cannot recruit and provide a software programmer to a corporate client of your former employer?

Here is another rub.

Your old employer typically "leases" independent contractors to its corporate clients for specified time periods, typically designed to provide manpower for only so long as it takes a given project to be completed.  Your new employer, on the other hand, supplies only recruits for permanent hire by corporate clients.  Is it a violation of your non-compete to provide such services when, in fact, your new employer does not truly "compete with your prior employer?

How to Avoid a Lawsuit Over my Pennsylvania Non-Compete Agreement

The bottom line is: IT personnel recruitment is a complicated business, and non-compete agreements in this field are often overly broad and potentially unenforceable in whole or in part.  However, former employers often will not hesitate to sue if they believe their financial interests are being compromised by a former employee.  And, there is nothing you or anyone else can do to stop your former employer from filing a lawsuit, even a baseless lawsuit, if that is what it wants to do.  Therefore, the best approach is to develop a careful strategy that enables you at once to continue working in your chosen profession while minimizing the risk of suit or, if suit is unavoidable, the risk of a successful suit by your former employer.

I am John A. Gallagher, a non-compete employment lawyer with 21 years of experience located in Paoli, Pennsylvania. Call 610-647-5027 for a free telephone consultation, or send me an e-mail. 

Recruiters and Non-Compete Agreements in Pennsylvania

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If You Are a Recruiter, You Have Probably Signed a Non-Compete Agreement

Nowadays, many companies are electing to hire independent contractors for specified projects as opposed to hiring employees on a full-time basis.  This is good news for recruiters.  However, virtually any recruiter that is hired is required to sign a non-compete agreement, which typically includes a non-solicitation clause. 

Pennsylvania Courts Will Enforce a Non-Compete Agreement Only if Doing So is Necessary to Protect the Legitimate Business Interests of Your Former Employer

A standard non-compete agreement prohibits you from working for a competitor of your former employer for a period of time usually ranging from 1-2 years. 

A standard non-solicitation agreement will prohibit you from doing business with any of the corporate clients or individual candidates of your former employer for a similar time frame.

In most situations, courts will not enforce non-competition covenants because they are not truly needed to protect your former employer's business interests. After all, it is a big world, and how is one more recruiter in the vast sea of recruiters going to hurt your old company?

Click Here to read our recent Post concerning the practicalities of such clauses where IT Recruiters are concerned. 

Click Here to read our comprehensive post on the enforceability of non-competition agreements in general.

Pennsylvania Courts Will Enforce a Non-Solicitation Agreement if You Are Taking Clients From Your Old Firm and Causing it to Lose Money

The above headline says a mouthful, and one must parse through and understand each sub-proposition to understand the essence of Pennsylvania law where non-compete/non-solicitation agreements are concerned.

Here is a simple rubric:

Joe Employee joins new firm competitive with old firm but does not do business with corporate clients or candidates of old firm: non-compete generally will not be enforced;

Jane Employee joins new firm competitive with old firm and does business with corporate clients of old firm but not candidates: non-compete generally be enforced;

Joe Employee joins new firm competitive with old firm and does do business with individual candidates but not corporate clients of old firm: non-compete generally will not be enforced if Joe found candidates via social networks such as Linked-In, as opposed to via use of old employer's database that he had downloaded and kept after his job ended.

There Are Many Permutations to Pennsylvania Non-Compete Law

The fact is, each and every situation is essentially unique, and avoiding a lawsuit is the key goal, even if it means your earnings are deflated for a while.  Even so, you must understand that, no matter what you do, there is nothing anyone can do to stop your former employer from filing a lawsuit if that is what it wants to do.

Consequently, the best offense is a very sound strategy.  One must think through and carefully plan one's steps so that, if a lawsuit cannot be avoided, you may emerge victorious.

I am John A. Gallagher, a non-compete employment lawyer with 21 years of experience located in Paoli, Pennsylvania. Call 610-647-5027 for a free telephone consultation, or send me an e-mail. 

The Wizard Will See You Today - Anyone Can File a Lawsuit

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In Pennsylvania, Anyone is Allowed to File a Lawsuit for Any Reason

To a lawyer, what I am about to say is axiomatic.

For most of my clients, what I am about to say causes an "Aha" moment.

Here we go:

1) No Civil Police

The Police Will Not Stop...

Fact:  There are no civil police that you can call if you believe you are being subjected to behavior that is unlawful according to civil laws.

...this Type of Behavior

Meaning....? If you are being harassed at work, or threatened with a baseless lawsuit by your former employer, you cannot call anyone to make your antagonist stop what it is doing. 

Compare:  If a robber is in your house, and you call the police, they will (hopefully!) come immediately to stop the crime.




2) No Bar to Door to Court



Unlike the Wizard, the Courts Accept all Callers

One files a lawsuit by walking into a courthouse, paying a fee and filing a Complaint.  No one reviews the Complaint to see if it is worthwhile or sound before it is filed.  If you have a Complaint, and have a check, the lawsuit will be filed - every time.






3) What Does This Mean to Me?

Civil disputes are best worked out prior to the filing of a lawsuit.  If they cannot be worked out, no one can stop another person from filing a lawsuit, no matter what the circumstances.

So....

If you are being treated unfairly at work, there are strategies you can employ to remedy the situation, but there is no "authority figure" that you can call that will make your employer stop what it is doing.  In many such situations, the smart thing to do is to retain an attorney, and then develop and execute a sound strategy that you protect all of your rights to remedies such as unemployment compensation, severance, COBRA, a lawsuit alleging discrimination, etc., etc.

NOTE: There is a process called an injunction proceeding that can be utilized via the filing of a lawsuit wherein one asks that the offensive behavior be stopped.  However, such suits can be quite expensive.

If you are being threatened with a lawsuit for violating a non-compete agreement, there is no one that you can call to examine the matter and determine who is right/wrong and whether a lawsuit is appropriate.  Rather, you must try and work it out yourself or, perhaps more prudently, via counsel.

I am John A. Gallagher, a non-compete employment lawyer with 21 years of experience located in Paoli, Pennsylvania. Call 610-647-5027 for a free telephone consultation, or send me an e-mail. 

"Headhunters" and Non-Compete Agreements in Pennsylvania - Some Things to Keep in Mind

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Human Resource Recruiters in Pennsylvania Are Usually Bound by Non-Compete Agreements

Yet, the personnel recruitment industry is a highly fluid one wherein recruiters frequently move from job to job on a regular basis.  How may one retain one's freedom to choose a new employer or business endeavor when one has executed a seemingly airtight non-compete agreement?

Click Here to read our recent discussion on this issue, which includes links to other Posts on a variety of related topics.

I am John A. Gallagher, a non-compete employment lawyer with 21 years of experience located in Paoli, Pennsylvania.  Call 610-647-5027 for a free telephone consultation, or send me an e-mail. 

The Worst Predictions of All Time!

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Yes, yes, this Post has nothing to do with Employment Law, I know!  But, I found an 1999 article from Herbert I. London called "Piercing the Gloom and Doom" and enjoyed it so much, I thought I would pass it along.

Here are some of my favorites, as per Mr. London's article:

Uh, Mr. President.....

Reisman Never Saw This Coming...

In 1905, Grover Cleveland said, "Sensible and responsible women do not want to vote." 
Social scientist David Riesman declared, in 1967, "If anything remains more or less unchanged, it will be the role of women."

"You ain’t going nowhere, son. You ought to go back to driving a truck," said Jim Denny, manager of the Grand Ole Opry, in firing Elvis Presley after a performance in 1954. 

Nowhere Man?!

In the1830s, Dionysius Lardner, author of The Steam Engine Explained andIllustrated, said, "Rail travel at high speeds is not possible becausepassengers, unable to breathe, would die of asphyxia."



Let's Just Stick to Telegrams...

"Thistelephone has too many shortcomings to be considered as a means ofcommunication," said the president of Western Union in 1876. "Thedevice is of inherently no value to us."   
Thepresident of Michigan Savings Banks advised Henry Ford’s lawyer not to investin the Ford Motor Company because, he said, "The horse is here to stay,the automobile is a novelty."

Like a Pet Rock....

In1921, radio pioneer David Sarnoff said, "The wireless music box has noimaginable commercial value. Who would pay for a message sent to nobody inparticular?"

Darryl Zanuck observed, in 1946, "Television won’t last because people will soon get tired of staring at a plywood box every night."

BORRRR-INGGGG....

In1926, Lee DeForest, inventor of the vacuum tube, said, "Whiletheoretically and technically television may be feasible, commercially andfinancially I consider it an impossibility."

"Heavier-than-airflying machines are impossible," said Lord Kelvin, president of theBritish Royal Society and one of the nineteenth century’s greatest experts onthermodynamics.

Na na na na na, Pops!

The Reverende Milton Wright, "If God wanted us to fly, He would have given us wings; He would have made us angels; He would have made us birds. Let me assure you, you will not see people fly." Three months later, Wright’s two sons, Orville and Wilbur, flew the first airplane, from Kitty Hawk, North Carolina.

"Arocket will never be able to leave the earth’s atmosphere," stated the NewYork Times in 1936.

Prepare to be Amazed!

"Spacetravel is utter bilge," said a British astronomer in 1956.

"Thereis no likelihood man can ever tap the power of the atom," said NobelPrize-winning physicist Robert Milliken in 1923.



Trisk, Trisk....

"Takingthe best left-handed pitcher in baseball and converting him into a rightfielder is one of the dumbest things I ever heard," said Tris Speaker in1919. He was talking about Babe Ruth. 

The chairman of IBM said, "I think there is a world market for about five computers," in 1943.

"There is no reason for any individual to have a computer in his home," said the president of Digital Electronic Corporation in 1977.


In1929, Yale economist Irving Fisher said, "Stock prices have reached whatlooks like a permanently high plateau." Two weeks later, the stock marketcrashed.




How About $Millions?

MGMexecutive Irving Thalberg had this for Louis B. Mayer regarding Gone With theWind: "Forget it, Louie, no Civil War picture ever made a  nickel."



or Else Become an Icon....

Thedirector of Blue Book Modeling Agency advised Marilyn Monroe in 1944, "Youbetter learn secretarial work or else get married."

Right, then....

"Wedon’t like their sound, and guitar music is on the way out anyway," saidthe president of Decca Records, rejecting the Beatles in 1962.

"Wewill bury you," predicted Nikita Kruschev in 1958.

Which one is your favorite? 

The requirements for 2012 California labor law posters

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Every state has its own unique labor lawsin addition to the federally mandated ones, and California is no exception. Therequirements for 2012 California labor law posters include payday notice,minimum wages, time off for voting, unemployment insurance, smoking policy,emergency contact number, sexual harassment, discrimination, family rights, andwhistle blower protection. Every employer is required to educate his or herworkforce on the pervious policies, which will ultimately allow for aproductive business environment. An organization can only prosper with the helpof its workforce, so it is therefore vital for employers in the state ofCalifornia to closely follow the mandated labor laws.

Arizona Labor Law Posters Face Unique Hurdles

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The state of Arizona has grown immensely in the past decade. Many of the cities in Arizona have been listed as some of the fastest growing cities in the United States during that span. This influx of people has led to many new businesses opening up. While construction was one of the biggest industries to grow during this time, there are also many other businesses that have been built up to support all of the new residents to the states. Arizona is not that different from any other state when it comes to the rights that employers and employees have.

All businesses in the State of Arizona are required to have the federal labor law posters and the Arizona labor posters placed in a conspicuous place that all of the employees of the business can see. The most common place for this is the employee break area, but there is no rule that states exactly where it has to be. As long as it is in a place that is visible to all employees, it is okay. These posters explain the rights that all of the employees of the business and the employers have in regards to the workplace.

The federal poster lists the rules and regulations that include the federally mandated minimum wage, the safety standards for a business, the family medical and leave act and the equal opportunity regulations to name just a few. The Federal and State labor law posters will include regulations that every state imposes for issues that are specific to them. This can include a higher minimum wage than is federally required, rules about minors working in a business and information about breaks for employees.

Because Arizona has many people employed in businesses such as construction that do not always have an office or a building where the business is located, it is not always as easy to display the posters that are required. That does not mean that they are not required or that they are not important. It does mean that the state has to come up with rules that deal with this problem. Another problem for Arizona is the amount of people working illegally. These people might not think that the rights of workers apply to them, but they still can. The state needs to make sure they are making the efforts to educate everyone about their rights and the access they should have to the information on the posters. It is never going to be a process that is 100 percent perfect, but it can be something that helps a lot of people.

Arizona Minimum Wage Rate For Employees

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The labor department in the United States of America publishes State employment laws from which no deviation is possible. Any direct violation can trigger legal proceedings or heavy fines can also be incurred by the employer as well. In fact, there is some distinction in between the labor law posters and the employment regulations of every State in America. The Arizona labor law posters are more detailed in micro aspects and ensure that every employee must be aware of the minimum wage rate, the pay days and the overtime pay. The federal labor laws cover macro aspects covering employment issues.

In accordance with the Arizona labor posters there can be no discrimination in between a minor or an adult or white and black. Basically the hiring and payment criteria are all the same for all potential candidates. The least amount of employment amount paid to the employees is the minimum wage rates that also vary from one state to the other. If the amount falls below the standard rate set in the Arizona labor posters it is a direct violation and the employer can incur heavy fines.

The state labor law posters deal with all the macro issues relating to employees. It includes health, safety and no discrimination. It further deals with allowances and other benefits. These federal posters are applicable in the same way in every state in America. According to the Arizona labor law posters the least amount of wages to be paid cannot be fall below 8$ per hour. As mentioned before any deviation will be a direct offense. The state labor posters cover health and safety issues along with all other important macro aspects and leave the minimum and maximum wage rate to the provincial state level.

There are some distinctions in between Arizona labor posters and the state labor law posters. In Arizona minors and adults are treated on the same scale. The job age is different in the federal law. The difference is smaller that is of two years. The bonus amounts earned by the employees are not counted in the minimum wages. Employees can seek legal counseling if they are unfairly treated but this is hardly the case because these laws are respected by both the parties. With these posters the employers cannot pay less and the employees cannot demand access amounts. That is one of the basic reasons that their importance in not undermined.

The Issues Covered by Federal Posters And State Posters

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Federal labor law posters are regulated by the federal government and they may vary from a provincial poster, such as New York labor law posters. The federal labor poster will ensure pivotal aspects that cannot be undermined. It includes the criteria from which no deviation is possible. The provincial ones like the New York labor posters cover the minimum and maximum wage rate and some other issues. The reason is that every State in the U.S has excelled in a specific kind of business or commercial activity. Likewise the posters published in Ohio will be somehow different from the poster published in Florida, but they both are governed under the federal legislations.

The federal labor posters cover health, safety, no discrimination and fair treatment. There is unemployment insurance and extra. Whereas the provincial posters like the ones published as New York labor posters, cover most importantly pay scale issues. They cover minimum and maximum wage rates which in fact do vary from one state to another. It also covers overtime wages as well. This legislation transformed into employment posters that play a supportive role and increases the standards of a workplace environment. These legislations are normally obeyed and it is very scarce that any violation is recorded.

We can also see the federal labor law posters from the perceptive of the employers. It not only guards the employees. With these regulations, the employees and employers will have same right under the same roof. Basically, the purpose of these posters is fair treatment of both parties. Do you know how important NY posters are? Yes, the New York labor posters cover micro issues, for instance the pay day’s solution in case the paydays are delayed and most importantly other allowances that also vary from one state to the other. These are very important because only with visible regulations standard criteria can be set.

The federal labor law posters cover macro issues, for instance the hire must not be based on discrimination. It also notifies the employer to provide the required safety in the work place. If the work is of such a nature that it demands certain amount of risk that it becomes incumbent on the employer to provide the employees a standard safety gear. New York labor law posters are significantly in the favor of the employees in a positive way. The employment criteria has considerably improved with these posters in the United States.

Displaying Arizona Labor Posters

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The state labor law posters are very much important to display at the working places of different states of U.S. There is a very strict and tough law governing their issuance. Basically the theory behind them is very simple; each employee is required to make the postings of the fundamental rights of labors at their working environments. This is done on the instructions of federal governments because they want to create awareness among the labors regarding the privileges allotted to them. Hence in every working scenario it is very important to publish these posters.

The main highlights which are included in the State labor law posters are provided by the government organizations for labors. No new additions from the employee in his own interest are not are allowed. The posters should strictly include the content which is approved by the federal authorities.

The aim is that the workers can understand their rights and other related concerns like the pay structure, health insurance, safety, disability, privileges etc. it is intended that at the time of getting appointed a worker must be aware about the dangers and the associated protections given to him by the law. The main headlines of State labor law posters are designed taking into consideration all the above mentioned facts.

Those employers are spared from following this law which has volunteers working for them or contract base employees. Excluding these every other business man which has more than one worker working under him has to make arrangements for this posting. So you can now guess the importance of this display. It is the basic right of every human to know about his or her basic rights. After that it is important to give the employees opportunities to exercise these advantages.

This law which guides such postings is very strictly followed in all states of United States. Any individual who displays negligence in this regard has to go through the punishments imposed by the laws. In majority cases you may have to pay a fine worth thousands of dollars. The 2012 Arizona labor law posters follow the same tradition of federal posters, but as it is a separate state so some variations have been included in the laws to facilitate the locals.

For all the business owners of Arizona who have potential employees working under them have to publish Arizona labor posters for their working places, otherwise you will have to face bitter consequences.