Another Chain Broken:

Published on August 23rd, 2016 by Alan L. Sklover

Another Chain Broken

Non-Solicitation in the Petrochemical Industry

Effective This Week: Another client is free from the “chains” of a non-compete or non-solicitation restriction. Here’s what happened:

The Case: Our client, a commissioned salesperson in the petrochemical industry in the Southwest, was quite dissatisfied by a sharp reduction in his sales commission plan, put into effect with little notice, after the company changed hands to a Private Equity group. Almost immediately, compensation programs, benefits and even paid vacations and sick days were cut back. He decided to attempt to leave, and had several offers in no time. Problem was, he was restricted by a non-solicit agreement, and feared getting himself, and a new employer, into a lawsuit.

Having signed a very broad non-solicitation agreement upon hire, our client was precluded from working for another company and for that company soliciting the business for any of his present employer’s customers for a period of 12 months. It applied to him if he ever left his employer, whether voluntarily or involuntarily. The new owners of his employer thought they had him “in chains,” and so could reduce any and all compensation and benefits they chose.

The Negotiation: There are typically three elements in the analysis of a non-compete agreement or non-solicitation agreement: together they spell “C.A.T.” They are (a) Companies (or Clients) that cannot be served, solicited or sold to, (b) the specific Activities that cannot be engaged in, and (c) the Time that the restriction lasts. A rather grueling negotiation, over some four months, centering around the Companies whose business our client could not solicit, and the Time periods of those restrictions.

We offer Twelve Different Model Letters, Memos and Checklists for dealing with Non-Solicitation Agreements and Non-Competition Agreements. Chances are, if you look, you’ll find what you need. Just [click here.] Delivered by Email – Instantly!

The Leverage: We were able to identify and use to the client’s best advantage his 25-year-long and very positive working relations with two client companies of great concern, both of whom suggested – since they had a strong relation with our client and none with the new management – that they would likely stop doing business altogether with his existing employer if our client was not permitted to leave with most of his freedom.

The Result: A six-month-long restriction on soliciting customers who were of no significance to our client, a 60 day restriction on soliciting companies of great significance to him, and no restriction whatsoever on the two companies he had strong relations with. A win-win, at least for our client. It is a result that enabled our client to make the move he wanted to, without any concern for litigation, free from the harsh limits set on his compensation and benefits imposed, foolishly in our mind, by the new Private Equity owners.

Our 185-Point Master Guide & Checklist to Non-Competition Agreements is a perennial favorite. It takes you step-by-step through everything you need to know. To obtain your copy, just [click here.] Delivered by Email – Instantly!
 

Another “Chain” Broken.

If you have a “chain” around your freedom and future, don’t fret . . . negotiate. Fear is what makes non-compete and non-solicitation agreements work. Just as you best “fight fire with fire,” so, too, can you “fight fear with fear.”

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2016 Alan L. Sklover. All Rights Reserved.

Sklover’s Thought for the Work Week

Published on August 22nd, 2016 by Alan L. Sklover

Featured Coffee Cup

“If it’s your job to eat a frog, it’s best to do it first thing in the morning. If it’s your job to eat two frogs, it’s best to eat the biggest one first. Then, no matter what, nothing worse will happen to you for the rest of the day.”

– Mark Twain

Hmmmmm. Unusual recipe for “breakfast,” but the message is a good one: Get the “tough stuff” out of the way, no matter how “distasteful,” and the remainder of your day will be easy sailing. Not a natural thing to do, but a wise one, nonetheless.

© 2016 Alan L. Sklover. All Rights Reserved

[This quote was contributed by our blog reader, Matthew, of Grand Junction, Colorado. If you would like to contribute a favorite quote, saying or proverb, please submit it to us at vanessa@executivelaw.com].

Non-Compete or Non-Solicit? Use “C.A.T.C.H.” to Understand It

Published on August 16th, 2016 by Alan L. Sklover

An Effective Way to Analyze Your Restrictions

“Limits, like fear, are often an illusion.”

– Michael Jordan

ACTUAL CASE HISTORY: For two weeks we were in a pitched battle in Federal court, trying to convince a Federal Judge to negate a non-competition agreement. Both sides had submitted legal briefs, and the Federal Judge ordered “oral argument,” which is each side giving its position, and the Judge hammering away at each side’s arguments with his questions.

Our client was a salesman in the field of medical devices, specializing in the sale of manufactured, artificial heart valves to hospitals for surgical replacement of damaged valves. After leaving his prior employer, he took a new job, and was doing quite well – until he was sued, and his new employer placed him on “Suspension – Leave of Absence” until the case was over.

In preparation for the upcoming “oral arguments” in perhaps my tenth reading of the non-competition agreement, I discovered something that no one else had discovered before, not even the Judge: the non-competition agreement was not, in fact, a non-competition agreement.

My careful reading revealed that working for a competitor was not, in fact, prohibited. What the supposed non-compete agreement prohibited was “working for a competing medical device manufacturer, anywhere in the eastern half of the United States, that sells to hospitals replacement heart valves based on the same technology.”

That last phrase, those final five words, and their importance, had somehow escaped notice by several people. There was no prohibition against working for a competitor, but only on working for a competitor while selling heart valves based on the same technology. The restriction was on using a certain technology more than it was on working for a competitor.

In fact, the new employer did not sell manufactured, artificial heart valves, but instead heart valves derived from the hearts of pigs. Neither the lawyers nor the Judge were familiar with the technology, and just assumed the same technology was used. Fortunately, I recalled hearing of the distinction during my initial, in-depth consultation with my client.

We asked permission to submit a supplemental brief to the Court on this very point, and the Judge permitted it. After conferring with their client, the former employer’s attorneys withdrew the case. Noticing just five words – based on the same technology – that’s all it took.

LESSON TO LEARN: When it comes to non-competition and non-solicitation agreements, “The answer to your question is almost always right there, in the words.” Reading dense legal agreements can sure put a lot of people to sleep – including lawyers. That’s always the case in law, but there is no substitute for careful reading and analysis, especially when it comes to non-competition agreements and non-solicitation agreements.

I have seen it time and time again: the applicability, effect, validity, and duration of non-competition and non-solicitation agreements being misread and misunderstood, and for this reason unnecessarily limiting the client’s career by false fears. I’ve seen it time and again: highly qualified and experienced lawyers telling their clients “Sorry, there is nothing we can do” when, in fact, all that is necessary to win a person’s employment freedom is to read and analyze carefully.

To assist you in doing that for yourself, in my 30+ years of handling non-competition and non-solicitation disputes, I’ve devised a rather simple way to analyze non-competition and non-solicitation agreements. It’s what I have come to call “C.A.T.C.H.,” which stands for (1) Competition, (2) Activity, (3) Time, (4) Conditions, and (5) Horizon.

This is not the usual, hackneyed “Geography, Duration, Scope” legal analysis that so many lawyers will refer to when discussing non-competition agreements. What they would be talking about is that a Judge will often look at the reasonableness of the restrictions’ “Geography, Duration, Scope” and cut one or more of them down if the Judge thinks they are unreasonable.

Our “C.A.T.C.H.” analysis is more immediate, more valuable and more important: “Does this non-competition or non-solicitation agreement even apply to you?” Might careful reading and analysis reveal you have no reason to hire an attorney, due to potentially unfounded fear based on an incorrect analysis? Why hire an attorney, and consider going to Court, if you really don’t need to? More importantly, why turn down a job offer, or not seek one, if you are not really restricted?

This endeavor is not “legal nit-picking.” Instead, it is the essential task of every employed person: to protect your employment freedom, and to utilize your business skills, experience and relations to your very best advantage.

I hope you find my “C.A.T.C.H.” analysis helpful, and its title a little “catchy.”

WHAT YOU CAN DO: Here’s eight steps you can use to help yourself understand whether or not, how badly or not, you may be restricted by a non-competition agreement or non-solicitation clause you have signed, or you may be asked to sign. And, too, they may help you understand how to get around any such restrictions. As Michael Jordan says, “Limits, like fear, are often an illusion.”
Continue Reading. . .

Sklover’s Thought for the Work Week

Published on August 15th, 2016 by Alan L. Sklover

Featured Coffee Cup

“Don’t wait for good fortune.
Instead, look for opportunities.”

– Unknown

A story: It was raining very hard, so hard that the water in the street was getting into people’s houses, and was up to their ankles. A man lived by himself in his house.
His neighbors came by in a row boat, and urged him to get in. He said, “No thank you. I believe in the Lord. He will save me.”

The rain kept falling. The water was so high that it went up to the second story of the man’s house, and the water was up to his waist. The police came by with a motor boat, and yelled at him to get in. He said, “No thank you. I believe in the Lord. He will save me.”

The rain got even worse. The water was so high that it went up to his attic. The man was standing tall, but the water went up to his chin. A helicopter came over head, and a rope was thrown down to him, and the helicopter pilot yelled to the man to grab the rope. He said, “No, thank you. I believe in the Lord. He will save me.

Well, the man drowned. He went to Heaven, and met the Lord. He said, “Lord, I believed in you. What happened?” God looked puzzled, and said, “Let me check in my Big Book.” A moment later God looked back, and said to him, “I don’t know . . . I sent two boats and a helicopter . . . ”

© 2016 Alan L. Sklover. All Rights Reserved

[This story was contributed by our good friend, Carrie. If you would like to contribute a favorite quote, saying or proverb, please submit it to us at vanessa@executivelaw.com].

Hey, It’s August . . . We Call This “Protect Your ‘Rolodex’ Month”

Published on August 9th, 2016 by Alan L. Sklover

Seven Ways to Ensure Your Contact Info is Never Lost

“As a general rule, the most successful [person] in life
Is the [person] who has the best information.”

– Benjamin Disraeli

ACTUAL CASE HISTORIES: For over three decades, I have assisted employees in the navigation and negotiation of their issues and opportunities at work. In that time a great deal of my time has been devoted to advising clients on matters related to job termination and severance.

In each and every severance agreement I can remember, there have been two provisions that each say, one way or the other, “All contact information that you have on your computer and in your office – whether it is regarding customers, clients, colleagues, vendors – belongs to the Company, and you must not take it with you.” These provisions are titled “Company Property” and “Confidentiality and Proprietary Information,” or titles of similar wording.

A good number of my clients have said to me, “My digital contact list is something I have been putting together for decades . . . in fact, most of the contact information on my office computer is my own, assembled by me long before I came to this job.” My response has always been: “Well, you may now have a big problem getting it back.”

Any employee who places his or her own contact information on the employer’s computer, on the employer’s cell phone, and even in the employer’s desk in their office for that matter, may have a very big problem, because they can instantly and without notice lose access to their computers, their phones and their offices. And even if they have access, copying or removing that contact information in the context of resignation, layoff or termination is near impossible, and even if somehow accomplished, quite risky.

Gone “without a trace” may be the names, addresses, telephone numbers, email addresses and other contact information of some, or even all, of the most important people in your work life and career. Could be hundreds or even thousands of names, addresses, email addresses, phone numbers, and even if such important data as their birthdays, their spouse’s names, or what college their kids have attended.

That information is extremely valuable and, in some instances, truly priceless. Once gone, it could take years to reassemble. Losing your contact information could mean years and years of setback to your daily job success and career advancement, surely not something to take lightly.

Over the years, I have come to the unalterable conclusion that it is primarily to withhold contact information from departing employees that (i) many employers often do not give prior notice of termination, (ii) many employers shut off access to computers before they give notice of termination, and (iii) almost every employer puts language in their severance agreements, that I’ve noted above, stipulating that all information on their equipment is theirs, and ask you to acknowledge that as a condition to receiving severance.

Might I be wrong? I highly doubt it, because information is so valuable to businesses, and if an employer can lay claim to owning it exclusively, doing so can only be to the benefit of the company. In the hands of a former employee, it could mean the possible loss of customers, vendors, revenues, employees . . . and a whole lot of potential future business.

LESSON TO LEARN: Business contact information is extraordinarily valuable to job and career. Like all things that are valuable, business contact information (a) should not be left in places you may lose access to, (b) should not be trusted to the hands of people who may not later return it to you, even when it is provably your property, and (c) should not be placed in circumstances where others may lay claim to its ownership. It’s like leaving a pile of cash in the ATM machine – the next six customers may claim it is theirs – and you have no good way to prove it’s yours.

Wise people take necessary precautions. When it comes to your business contact information, you most certainly do so whenever and wherever you can.

WHAT YOU CAN DO: Here are eight ways to ensure your very valuable business contact information – or any part of it – is not needlessly lost:
Continue Reading. . .

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 30 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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