What is the name of your state (only U.S. law)? CA
Dear All,
I am in a strange predicament involving 3 Parties. Note all of us are in CA where non-competes are generally invalid.
Facts:
1. I was employed by Company A. At the time of joining, I signed non-solicitation cum confidentiality agreement saying that I will not "poach" Company A's employees, nor solicit clients to divert business, upto 1 year after I leave.
2. It so happened that Company A approached Mr X, who was in similar line of business (example market research) but entirely different sub-specialty. Both did not compete with each other, both have different database or "catchment area" to collect such data such that it does not compete. Company A wanted to experiment venturing into a new sub-specialty, hence approached Mr X, as that was his specialization. Mr X signed same non-solicitation agreement as it would have the confidentiality clause to protect Company A's project information being disclosed. The project never kicked in, and Mr X was never employed or contracted to do the work. Note that the non-disclosure / non-solicitation agreement has the words "employee / potential employee" written while addressing clauses. Also, Mr X never gave hardcopy of the non-solicitation agreement (only scanned copy given via email) and matter of obtaining hard-copy was never pursued as the project was shelved.
3. Recently, I was being badly treated by my employer (Company A) such that I was being mentally stressed. I asked Mr X if he would hire me for his new venture, and I was immediately hired as a contractor. The day the contract was signed, I resigned from Company A without giving notice. My boss was not pleased at all, but I did this to avoid his treatment that would have worsened had I decided to give him a notice period and stick around.
4. Another fact related to non-poaching: I asked Mr X if he could hire me, but Mr X never proposed to me to hire me (hence Mr X did not "poach" me). Our agreement in general says we cannot work with someone else in "competing business" and that too only while currently being employed with Company A. None of us are currently employed or involved with Company A - this is FYI.
My questions:
A. Can Mr X still be bound by the non-solicitation agreement keeping in mind he never gave hardcopy or was ever employed, subcontracted or work in the project with Company A. Will Company A still have an advantage here?
B. Can Company A reach out to Mr X saying he "poached" me and that they should let me go? Note that I approached him, can document the same, he did not approach me. If Mr X is forced to let me go, my entire family will go hungry. Note that this is California where non-competes are generally invalid.
Please advise, as I have definite evidence that my ex-employer is trying to search desperately to find my new employer, and in the pretext of sending a letter (plain or attorney letter) saying I am bound by my non-solicitation, just as a reminder to new employer. There is a clause in non-solicitation that new employer can be contacted to remind them of any clause contained within the agreement, but I suspect the motive is to cause fear and panic in my new workplace to bring me down.
Thanks for reading and helping!
***EDIT and UPDATE *** I just found some useful information that may protect both me and Mr X. The "applicant" Non-solicitation document says that
"Applicant agrees that, during employment with "Company A" and for a period of one year thereafter, whether separation is voluntary or involuntary, he or she will not directly or indirectly, either alone or with others, solicit, entice, petition or recruit any current "Company A"applicant or consultant to leave "Company A" and work for a competitor of "Company A"". Facts:
1. There was no employment as we merely discussed a project but Mr X was never contracted or employed as project was shelved after just an initial discussion
2. Its a fact that I found both the project and Mr X, and introduced both to Company A, where I was then working, as a part of my Business Development contributions. I can prove that everything was introduced through me, but the fact still remains that I was employee of Company A
To me it appears Mr X is safe from non-poaching....
Dear All,
I am in a strange predicament involving 3 Parties. Note all of us are in CA where non-competes are generally invalid.
Facts:
1. I was employed by Company A. At the time of joining, I signed non-solicitation cum confidentiality agreement saying that I will not "poach" Company A's employees, nor solicit clients to divert business, upto 1 year after I leave.
2. It so happened that Company A approached Mr X, who was in similar line of business (example market research) but entirely different sub-specialty. Both did not compete with each other, both have different database or "catchment area" to collect such data such that it does not compete. Company A wanted to experiment venturing into a new sub-specialty, hence approached Mr X, as that was his specialization. Mr X signed same non-solicitation agreement as it would have the confidentiality clause to protect Company A's project information being disclosed. The project never kicked in, and Mr X was never employed or contracted to do the work. Note that the non-disclosure / non-solicitation agreement has the words "employee / potential employee" written while addressing clauses. Also, Mr X never gave hardcopy of the non-solicitation agreement (only scanned copy given via email) and matter of obtaining hard-copy was never pursued as the project was shelved.
3. Recently, I was being badly treated by my employer (Company A) such that I was being mentally stressed. I asked Mr X if he would hire me for his new venture, and I was immediately hired as a contractor. The day the contract was signed, I resigned from Company A without giving notice. My boss was not pleased at all, but I did this to avoid his treatment that would have worsened had I decided to give him a notice period and stick around.
4. Another fact related to non-poaching: I asked Mr X if he could hire me, but Mr X never proposed to me to hire me (hence Mr X did not "poach" me). Our agreement in general says we cannot work with someone else in "competing business" and that too only while currently being employed with Company A. None of us are currently employed or involved with Company A - this is FYI.
My questions:
A. Can Mr X still be bound by the non-solicitation agreement keeping in mind he never gave hardcopy or was ever employed, subcontracted or work in the project with Company A. Will Company A still have an advantage here?
B. Can Company A reach out to Mr X saying he "poached" me and that they should let me go? Note that I approached him, can document the same, he did not approach me. If Mr X is forced to let me go, my entire family will go hungry. Note that this is California where non-competes are generally invalid.
Please advise, as I have definite evidence that my ex-employer is trying to search desperately to find my new employer, and in the pretext of sending a letter (plain or attorney letter) saying I am bound by my non-solicitation, just as a reminder to new employer. There is a clause in non-solicitation that new employer can be contacted to remind them of any clause contained within the agreement, but I suspect the motive is to cause fear and panic in my new workplace to bring me down.
Thanks for reading and helping!
***EDIT and UPDATE *** I just found some useful information that may protect both me and Mr X. The "applicant" Non-solicitation document says that
"Applicant agrees that, during employment with "Company A" and for a period of one year thereafter, whether separation is voluntary or involuntary, he or she will not directly or indirectly, either alone or with others, solicit, entice, petition or recruit any current "Company A"applicant or consultant to leave "Company A" and work for a competitor of "Company A"". Facts:
1. There was no employment as we merely discussed a project but Mr X was never contracted or employed as project was shelved after just an initial discussion
2. Its a fact that I found both the project and Mr X, and introduced both to Company A, where I was then working, as a part of my Business Development contributions. I can prove that everything was introduced through me, but the fact still remains that I was employee of Company A
To me it appears Mr X is safe from non-poaching....
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