Noncompete agreement - Esthetician A friend of mine works at a skin care and retail store as an esthetician (dealing with skin care and other spa related treatments). Her boss has had her sign a non-compete agreement that would bar her from working as an esthetician in the local area if she were to leave. I would like to confirm if this is legally binding, and to what degree. I am under the impression that non-competes are difficult to enforce if they prevent you from making a lively in your chosen field, particularly since there would no proprietary knowledge being taken to another organization. What vulnerability is she open to? *This question pertains to New Hampshire, USA **I will not use any guidance here as legal council. I am looking for some initial information.
Such a clause must be presented before or at the same time the offer is made. The (somewhat new) law NH RSA 275:70 says Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect The question is whether such an agreement would mean you can't set up shop on your own and take a bunch of customers with you (it seems that such clauses are enforceable), or does it mean you can't work in that trade (competing for new customers, or as an employee of a competitor) – such an interpretation would not be enforced, in the analysis of this article. The clause must be "drafted narrowly to protect only a company's legitimate business interests, like customer goodwill and confidential information". A specific case of this interpretation is Merrimack Valley Wood Products v. Near, 152 N.H. 192, which finds that the law does not look with favor upon contracts in restraint of trade or competition...Such contracts are to be narrowly construed. Nonetheless, restrictive covenants are valid and enforceable if the restraint is reasonable, given the particular circumstances of the case In assessing reasonableness, three tests must be passed (must be answered "no"): first, whether the restriction is greater than necessary to protect the legitimate interests of the employer; second, whether the restriction imposes an undue hardship upon the employee; and third, whether the restriction is injurious to the public interest. As an example of a reasonable restriction: When an employee is put in a position involving client contact, it is natural that some of the goodwill emanating from the client is directed to the employee rather than to the employer. The employer has a legitimate interest in preventing its employees from appropriating this goodwill to its detriment. But restricting a person from working with any customers of the company (not just the employees work-related contacts) is unenforceable, because the company had no legitimate interest in protecting its entire client base from its former employee, because he had no advantage over any other complete stranger, possessing no special hold on the goodwill of the majority of Technical Aid's customers. See also Brian's Fitness v. Woodward for reaffirmation ("valid only to the extent that it prevents an employee from appropriating assets that legitimately belong to the employer"), and additional citations. The question arises whether there is a distinction between the former employee approaching former customers, versus those same customers approaching the former employee. I have not located any case that directly addresses that, but Technical Aid v. Allen, 134 N.H. 1 says A restrictive covenant must unreasonably limit the public's right to choose before it will be found to be injurious to the public interest. I think it is likely that the courts would find it to be an unreasonable limit on the public's right to choose, if a customer were prevented from choosing a different company to provide the desired service simply because the customer happened to have previously had a business relationship with the former employee. This "right to choose" is asymmetrical – the public has a right to choose any service provider, an employee does not have an equivalent right to pursue (seek out, woo) a customer, in light of a restrictiveness covenant.
Both law and accounting are subject to state regulation, so, at a minimum, work done remotely by non-licensed persons must be reviewed substantively and blessed by a local admitted professional before being shared with a client, and there are limits on what contacts with the client the back office can have. In a legal context, the back office is limited to what a paralegal can do, and that varies considerably from one U.S. state to another, especially with respect to real property matters. Mere &quot;book keeping&quot; as opposed to accounting is rarely a regulated profession under state law, but as in the case of legal services, the distinction between accounting that requires a license and activities that do not require a license varies from state to state (although less dramatically). The notion of selling &quot;forms&quot; is well recognized, but what crosses over the line from selling a &quot;form&quot; to selling legal or accounting advice varies and can be treacherous. I don't know off hand if this is true for accountants in most states, but in most U.S. states non-lawyers are prohibited from having an equity or profits based interest in a law firm, and referral fee compensation is also subject to significant professional ethics regulation. Non-competition clauses involving lawyers are also subject to heavy professional ethics regulations not common to non-legal professional activities. Without a more concrete example of what the dropservicing business model would entail, it is impossible to do a very definitive analysis. Your model seems to be based upon obtaining services from a third-party and re-selling those services. For the most part, that isn't a workable business model from a regulatory perspective in the U.S. Instead, you need licensed &quot;white label&quot; providers as the face of the business and you may potentially provide services behind them in the back office. There are some services along this line currently in existence with varied business models involving somewhat similar concepts: Legal forms companies like the recently succeeded Bradford Publishing. Hyatt Legal Services Plans Private legal services insurance such as Legal Shield. H&amp;R Block and also tax services. The legal services provided by the JAG Corps to military service members. Nolo.com Union sponsored legal services plans such as Union Plus. Title insurance companies such as First American Title and related transaction execution companies. The legal defense provided incident to a liability insurance policy by companies such as Allstate. Governmental shared risk pools such as CIRSA. Donation driven non-profits such as the ACLU. The Ann Arbor Tenants Union. Temp agencies providing paralegals to companies such as this one. A few also make contract attorneys' available for a firm's one time big project. Tax software companies like TurboTax (a division of Inuit). Westlaw LexisNexis Wolters Kluwer (f.k.a. CCH).
You need to be very clear with B that you intend to continue to operate A. You need to be clear whether you are to be an actual employee of B, or a hired contractor for B. If an employee, you need to agree with B how much time you can devote to A while employed by B, or to put it another way, how much time (per day, week or whatever) you are expected to devote to B before doing stuff for A. Are there to be restrictions, such as a ban on your doing things for A while at B's worksite? Above all, you need to agree on who owns what rights to both the existing A code, and any new code will be held by you, and what rights will be held by B. All the above should be in a written agreement, and you would be wise to have a lawyer draft or at least review the language. If B will not agree to this, you will have a choice to make: put A on hold while working for B, or not accept B's offer. Do not lie to B about what you are doing with A. Oh, and if you had any sort of non-compete agreement at the job you quit four months ago (let's call them C) be sure that you comply with it, or are prepared to fight it. If there is any question, this is another area where you would do well to consult a lawyer. Many non-compete agreements claim more than local law allows, and are not enforceable. Many others are very much enforceable. It depends on the wording of the agreement, and the provisions of the law where you are located. Also, do not use any confidential data from C without C's written permission.
The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem.
A text message is just as legally binding as a letter, and the lion's share of the cases have held that a text message from a known sending phone number is equivalent to a signed letter. One would have to carefully parse the exchange of communications to see if they amounted to a binding offer and acceptance, but the fact that it was in a text message, rather than on a piece of paper is irrelevant. Indeed, generally speaking, such an offer and acceptance, if the words exchange show that, could be binding even if made orally, if it could be proved by a preponderance of the evidence. Procedurally, however, once a judgment has been entered, as is the case here, the process of proving that you have complied with a stipulation regarding what is to constitute payment in full may be challenging. I'll leave the question of civil procedure in Connecticut small claims court to someone more knowledgable about it than I am as that could vary a lot from state to state, or even from court to court based upon local practice within the state.
"There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England &amp; Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages.
There is a general common law doctrine of contract interpretation which tells us that ambiguities are construed against the drafter. In your case, had the employer intended to require two years of work (or else reimbursement back to them) they could have explicitly stated this. The fact is, the contract is written as it is for a reason, likely to entice you to accept the offer of employment. They softballed the requirements to get you to take the job and now they are trying to play hardball. I would hope that a court would find this and tell the employer to think about these clauses next time. The fact is, after a deal goes south is a bad time for an employer to start explaining what these terms mean. You have fulfilled your half of the bargain. If the facts are as you say they are then you satisfied the "best of my ability" condition. Another problem you might have is if the employer does not take you to court but instead continues to make threats, maybe sends a collections agency after you. In that case you will need to get an injunction to stop the employer. In other words, get a court to state that you do not owe them any money and enjoin them from continuing to as if you do. EDIT: as a commenter mentioned, a contract may explicitly provide that ambiguous terms will not be construed against either party.
According to Nolo.com five requirements must be met for an agreement to be binding and enforceable by a court. Your scenario meets one requirement at best (see comments). Therefore, there is no legally binding agreement. Contract Requirements To be enforceable by a court, every contract (whether written or oral) must meet several requirements. Let's take a look at each of them. Consideration. As Cole Porter wrote in the song, True Love, &quot;You give to me and I give to you.&quot; That sums up consideration. Each party has to promise or provide something of value to the other. Without this exchange, there is no contract. (Learn more in Nolo's article Consideration: Every Contract Needs It.) Offer and acceptance. There must be a clear or definite offer to contract (&quot;Do you want to buy this?&quot;) and an unqualified acceptance (&quot;Yes!&quot;). Legal purpose. The purpose of the agreement must not violate the law. For example, you won't be able to enforce a loan agreement that charges interest in excess of what is allowed by usury laws or a service agreement to hire someone to rob a bank or kill your mother-in-law. Capable parties. To be &quot;capable&quot; of making a contract, the parties must understand what they're doing. For example, there is a presumption that minors and insane people usually don't know what they're doing and, for that reason, contracts they enter into won't be enforced under certain circumstances. (Learn more in Nolo's article Who Lacks the Capacity to Contract?) Mutual assent. This is also sometimes referred to as a &quot;meeting of the minds.&quot; The contracting parties must intend to be bound by their agreement and must agree on the essential terms. If this isn't enough, there is another common law defense available to such a defendant called estoppel. Courts look to the behavior of the parties to determine if there was an actual contract or not. If the behavior does not fit the alleged agreement, then the plaintiff is estopped from enforcing the words on paper.