RE: Consultants:Dim or Delete the Non-Compete?

Subject: RE: Consultants:Dim or Delete the Non-Compete?
From: KMcLauchlan -at- chrysalis-its -dot- com
To: "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Fri, 15 Mar 2002 12:20:28 -0500

If a time is mentioned in a non-compete clause
with an agency, it should be a duration from
the START of your work with the customer company,
not the END of it. It shouldn't be a standard,
boilerplate number unless they are getting you
contracts and work terms that are similarly
standard, boilerplate durations and conditions.

It only makes sense, as Andrew says, that you
not make some side deal, a short time into your
term with the employer, to squeeze the agency out
of the picture. That would indeed be screwing them.

On the other hand, if the clause attempts to impose
a "non-compete" stricture on you that extends from
(or past) the end of the specific contract they have
obtained for you, with the current customer -- in
other words, if they want to control your life and
employability beyond the scope of their own efforts --
then that would be them screwing you.

That is, something like: "The best we can get for
you is a five-month contract, but we demand that
you bindingly exclude yourself from any work for
that employer for an additional period, beyond what
we were able or willing to negotiate with them" is
just a tad greedy and manipulative, don't we think?

So, if they negotiate a ten-month contract, you work
the contract, you get paid and they get paid, and then
the employer asks you to continue, that continuation
should be on your terms, and free of any non-compete
entanglements. At that point, you owe the agency nothing
more, because it is patently obvious that it was your
own efforts that got you the new offer. You might care
to keep the agency in the picture if you see yourself
needing their services in the relatively near future.
You don't want to p**s in the local watering hole...

If the agency wants to lay claim to a chunk of your
compensation beyond the ten months, then they should
have been better negotiators in the first place,
shouldn't they?

OK, so that's a little harsh. You wouldn't have gotten
the initial foot in the door without them... and maybe
the employer wasn't sure that the market would need
further work of your sort, back when negotiations were
going on.

Maybe what's needed, in anticipation of such an eventuality,
is some sort of protocol that treats all parties fairly
enough that they won't mind working together in future.
Not a total sacrifice on the part of one party or another,
but perhaps also not everthing that they could possibly
squeeze out of a turnip.... whoops, mangled a metaphor there...

So, in the end, you should have such possibilities in
mind when you first devise a contract with the agency.
The point is to cover the likely scenarios ahead of
time, and to not just accept language that leaves
either side feeling screwed. Your ability to do so,
though, might hinge on your established track record
and the leverage it brings -- or doesn't. :-)

That said, it's good to have these kinds of things
brought to light in a forum like this, so that other
contractors -- especially those just getting into
contracting -- can know some of the pitfalls and
practical considerations outside just the narrow
scope of getting words and pictures on paper/phosphor.


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