What is the name of your state? NY
Originally I post this on other forum, probably it was wrong forum, let try it here.
first is what is in the contract:
"NON/SOLICITATION
Applicant, its employees consultants, agents or representatives will not attempt to hire the personnel of "Agency" or its Client during the term of or within one year after the termination of his assignment. If during the term of or within one year after the termination of the Assignment, Applicant, its employees, consultants, agents or representatives hires or directly or indirectly contracts with the personnel of "Agency" or its Client, Applicant agrees to pay to "Agency" forty per cent (40 %) of either the new annual compensation payable to such personnel or the fees paid to or in respect of such personnel for one (1) year after such personnel separates from service with "Agency" or its Client whichever is greater, as liquidated damages.
Further, Applicant, its employees, consultants, agents or representatives will not solicit or contact with, without prior written approval, Client or any of "Agency"'s clients servicedby Applicant, its employees, consultants, agents or representatives for professional Services work or for an individual contract during the term of or for a one (1) year period from the time of the termination of this assignment. If, during the term of or within ones (1) year aher the termination of the Assignment, Applicant, its employees, agents or representatives directly or indirectly contracts with Client, Applicant agrees to pay to "Agency" forty per cent (40 %) of the anticipated gross revenues as liquidated damaged."
Second is my story:
Employment agency offers to someone 3-6 months try to hire position to work for one of their client.
Contract between this consultant and agency was regular NON-SOLICITATION AGREEMENT, no such thing as _try-to-hire_ was mentioned in this contract. Agency talked this consultant that when their client decides to hire this person, agency will change agreement for consultant, and will let him go.
Even if this wasn_t mentioned in contract, several witnesses who were involved into negotiation can swear it was try-to-hire position. Also several e-mails and faxes between agency and consultant exist where is clear that agency knows about situation and have no problem that this consultant will be hired by their client as employee.
When time came, and client of this agency decided to give consultant permanent position, Consultant several time tried to contact to the agency for change in agreement, but didn_t get any responds. Not negative respond not positive, just total silent.
Since:
a. Agency didn_t pay consultant for his work during long period of time
b. He couldn_t get in contact with agency (they didn_t return calls, didn_t react on faxes and didn_t respond on e-mails)
c. It was virtually _try-to-hire_ promises.
d. Company which was hiring him also says that they have contract with agency where position is try-to-hire.
e.
Consultant decided to go and take the offer.
7 months later this consultant (he still wasn_t paid from the agency for his work) got summons for breaching NON-SOLICITATION AGREEMENT. Other parties involved in this deal got also their summons from this agency.
Other consultant from this agency got himself in same situation in same time.
Some investigation has shown that this agency had similar lawsuits in the past.
Questions are:
1. How legitimate those witnesses, faxes and e-mails for the court for this case?
2. Based on evidence above, how bad situation for this consultant is?
3. Not to be paid for a long period of time is not good reason to say that contract is not ligament any more?
Thanks in advance for your advice.
Originally I post this on other forum, probably it was wrong forum, let try it here.
first is what is in the contract:
"NON/SOLICITATION
Applicant, its employees consultants, agents or representatives will not attempt to hire the personnel of "Agency" or its Client during the term of or within one year after the termination of his assignment. If during the term of or within one year after the termination of the Assignment, Applicant, its employees, consultants, agents or representatives hires or directly or indirectly contracts with the personnel of "Agency" or its Client, Applicant agrees to pay to "Agency" forty per cent (40 %) of either the new annual compensation payable to such personnel or the fees paid to or in respect of such personnel for one (1) year after such personnel separates from service with "Agency" or its Client whichever is greater, as liquidated damages.
Further, Applicant, its employees, consultants, agents or representatives will not solicit or contact with, without prior written approval, Client or any of "Agency"'s clients servicedby Applicant, its employees, consultants, agents or representatives for professional Services work or for an individual contract during the term of or for a one (1) year period from the time of the termination of this assignment. If, during the term of or within ones (1) year aher the termination of the Assignment, Applicant, its employees, agents or representatives directly or indirectly contracts with Client, Applicant agrees to pay to "Agency" forty per cent (40 %) of the anticipated gross revenues as liquidated damaged."
Second is my story:
Employment agency offers to someone 3-6 months try to hire position to work for one of their client.
Contract between this consultant and agency was regular NON-SOLICITATION AGREEMENT, no such thing as _try-to-hire_ was mentioned in this contract. Agency talked this consultant that when their client decides to hire this person, agency will change agreement for consultant, and will let him go.
Even if this wasn_t mentioned in contract, several witnesses who were involved into negotiation can swear it was try-to-hire position. Also several e-mails and faxes between agency and consultant exist where is clear that agency knows about situation and have no problem that this consultant will be hired by their client as employee.
When time came, and client of this agency decided to give consultant permanent position, Consultant several time tried to contact to the agency for change in agreement, but didn_t get any responds. Not negative respond not positive, just total silent.
Since:
a. Agency didn_t pay consultant for his work during long period of time
b. He couldn_t get in contact with agency (they didn_t return calls, didn_t react on faxes and didn_t respond on e-mails)
c. It was virtually _try-to-hire_ promises.
d. Company which was hiring him also says that they have contract with agency where position is try-to-hire.
e.
Consultant decided to go and take the offer.
7 months later this consultant (he still wasn_t paid from the agency for his work) got summons for breaching NON-SOLICITATION AGREEMENT. Other parties involved in this deal got also their summons from this agency.
Other consultant from this agency got himself in same situation in same time.
Some investigation has shown that this agency had similar lawsuits in the past.
Questions are:
1. How legitimate those witnesses, faxes and e-mails for the court for this case?
2. Based on evidence above, how bad situation for this consultant is?
3. Not to be paid for a long period of time is not good reason to say that contract is not ligament any more?
Thanks in advance for your advice.
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