I just want to say this: I don't think it's helpful to look on the agency's contractual clauses as "penalties" or "damages." They claim a right to charge the client for hiring you exclusively, or to prevent you from working privately for their client for a fixed period after leaving them, but this is not in exchange for nothing. They've hired you, they've insured you, they handled your admin., they may have provided you with training, and they've introduced you to the client - these are all services with costs attached, which they invested in in the expectation of profiting from your labour; so it's not unreasonable or unfair for them to recoup some of the future profit they'll be losing if you and the client now choose to cut them out.
The best approach would be for the client to agree a fee with the agency. It's negotiable, and that way everyone stays on good terms. If God forbid anything happens to you and they need the agency again - and from your point of view when this particular assignment comes to its natural end - you'll all be better off if all parties have been treated with respect.
When the family hired the agency, the family most likely signed a contract that included a clause about prohibiting/allowing hiring workers from the agency.
Also, when you came to work for the agency, your employment contract/paperwork most likely included terms on quitting and working privately for clients of the agency.
You should check your contract, and the family should check theirs.
Before I hired home care workers, I asked for a copy of the agency's contract, as some of them included very onerous and offensive clauses. But if I remember correctly, each of them had a clause addressing hiring their workers. And the penalties were significant for the family, in the thousands of dollars range.
As others have suggested, you need to review the contract you signed with the agency, but also seriously consider whether or not you'll be paid enough to provide your own health care insurance, liability coverage, as well as hours you'll have to work, tax obligations and more.
I want to address the seriousness of "covenants not to compete" as they're also described in the legal field.
BurntCaregiver wrote:
"As for non-compete clause contracts, these become null and void if you quit employment with the care agency and the family you will work discontinues their service. You are not 'poaching' their clients if these people aren't their clients. Once you leave the employ of the care agency, your business with them is finished."
I totally, and adamantly disagree, while I also respect that this is BC's position and liability. The contracts I read prepared by business law firms for clients, before hiring someone, generally included non-competitive clauses, for a valid reason. And the duration of noncompetition period was generally about a year after contract termination.
Quitting does not "extinguish" liability if the covenant provides for a duration after termination of someone's position. The OP can quit, but if she signed a contract which includes a survivable covenant, she is legally bound by that. Break it, and she could face legal action.
The issue isn't limited to "poaching" clients; it's benefiting from an agency's work in establishing and operating a "going concern", which has significant business value, especially if a going concern is sold. That business (or agency) has client assets which from what I understand would be considered marketable.
The issue of not having recoverable assets for potential litigation against a former employee doesn't need to deter litigation. The agency may not choose to sue for damages, but rather for cessation of the offending actions. And that could include an injunction.
" I literally poached nine from my last care agency job."
I think this speaks for your position, which is not one I would support or recommend to anyone. I spent most of my life working primarily in commercial law but also worked in governmental law enforcement. While laws may not make sense, or be realistic, I would certainly respect them or at least not willingly challenge them. And business laws can be equally as devastating.
I worked on one suit in which a major Fortune 500 company sued a former employee who w/o permission used information gained before he left that company. The lawsuit was literally vicious, and scorching. If the defendant survived it w/o going bankrupt, I'd be surprised.
Anyone who "poaches" from an employer is gaining something - knowledge of existence of opportunities that he/she may not have had absent that particular employment. He/she benefits; the company does not.
BurntCaregiver, if you have statutory or case law citations supporting your interpretation, I'd be appreciative if you shared them. If I'm wrong, I'll willingly admit it. But my experience tells me that these are serious terms and conditions, especially in some areas where subject knowledge is gained on the job and leverages a worker's desirability for him/herself as well as to other potential employers.
It is NOT my intent to criticize your position, just to share what I see as legal insights from a broader perspective.
I respect everything you're saying and will let you in on a real and true fact here. When a person can keep their mouth shut and not broadcast who they're working for, and if that family pays them privately, how will the agency they once worked for know a thing? Never let your right hand know what your left hand is doing. I didn't go around proclaiming any care clients that I poached when leaving the last agency I worked for. Neither did my CNA friends that I shared the work with. Discretion. This way the agency and their lawyers are none the wiser on anything. Twilliams doesn't owe the agency she works for a thing. Once she leaves their employ it's none of their business what she does. Once a family discontinues that agency's service they do not have to offer any explanation. Like I said, the family who's hiring her privately can pay her in cash for a little while if it makes everyone more comfortable. I have found that pretty much most of the time lawyers are like lions with no teeth. Their number one tactic is intimidation and most of the time a person gets scared, backs down and falls right into line. Or they pay a bill that's not owed. Or they let a boss or a nursing home pulling something underhanded get away with it. Not me. Lawyers don't scare me at all. When a person doesn't back down, they back off.
I just thought of something else. If they are getting funding to provide caregivers it is possible that they have to go through an "approved" agency. That was the case when the VA would send caregivers in. They had to be from an agency the VA had a contract with. On the other hand I switched programs in the VA to one that provided more BUT I had to hire caregivers privately. (Go figure!) So if they are getting funds to help with caregivers they need to check to determine if their services would continue. They should also check their contract with the agency.
If you as a worker for an agency signed a non-compete clause, the old agency will likely do 2 things after you exit: - send you a certified mailing asking about you current employment status. And in it will be a copy of the NCC that you signed. By doing this, it gives you can opportunity to recognize the NCC and negotiate with agency a single payment for the NCC period. They tend to be 6 mos for low level workers. If you do nothing & they kinda know your working for the family, then - file a “breach of contract” lawsuit against you. They will be seeking a % of all wages paid for a period of time. Maybe 6 months. They win as you signed the contract & a judgement is placed against you, plus you also have to pay all legal fees and court costs. If you get a judgement placed, that debt will go to collection if you don’t pay it. and - they will bill the family / elder a fee based whatever was in the contract the family signed to enroll in the agency’s services for every week you continue to work for them. It may not be 6 months but longer. The family, unless they beyond love you, will likely stop employing you as it’s costing them extra to have you.
Someone will know your working for the family has happened and will let the agency know.
If the family is not hiring you correctly as a household employee and doing FICA, etc, reporting income & paying taxes to IRS, that morphs into other problems.
FWIW Biden just signed a EO on NCC for health care workers. But it’s more about the NCCs for physicians (mainly ER docs), RNs & RTs who work for big HCW staffing agencies. Those type of HCW had issues going to work in hospitals needing them due to Covid if the hospital was not already affiliated with the staffing agency. The EO allows the NCC penalty to be waived. It’s (the waiver) really upped the game & wages for travel nurses especially is what I’ve been told. I mention this because there’s a bunch of posts on other social media that all NCC are now unenforceable due to the EO. Not accurate.
If low-level workers are subject to a six-month contractual period where the former employers is entitled to know their employment status then the family hiring her privately should pay her in cash for that time period. A care agency trying to sue a former employee for 'breach of contract' because they kind of suspect they might be working for former clients of theirs will get laughed right out of court. "If you do nothing & they kinda know you're working for the family". Since when is doing nothing proof what that a person is working for a family that were former clients of a care agency? Since when is "kinda knowing" proof that the terms of a contract were violated? Please. This is nonsense. I'm not a lawyer, but I'm pretty sure maybe suspecting or kind of having a feeling about something don't hold up in court. Twilliams has nothing to worry about. She should take the private job, get paid in cash for a while, and keep her mouth shut. Everything will be fine.
The contract I signed with my husband's caregiver's agency stated I am liable for a $5000 penalty/fee if I hire her away from the company. I imagine her contract contains similar language.
For starters, I would never even consider signing such a contract and seek out other care agencies first. Pay in cash. If your name is on such a contract, have someone else hire her in their name and sign her paycheck. Like your spouse, or adult child, or cousin, or whoever you want. Anyone else whose name isn't on the contracts. If some other person isn't under a previous contract with the care agency, they are under no obligation to that agency. There are so many ways to get around care agency nonsense. So many in fact I might write a book about all the ways.
Countrymouse made a good suggestion. Some agencies might consider a "buy out" of your contracts (plural because likely there are clauses in your contract and your client's regarding this issue.) Best not to burn your bridges on the way out, just in case you ever need to go back.
While the contract issues are important to consider, there are many more considerations that need to be addressed:
1) You both need to have some kind of legal contract to cover both you and the client regarding hours, compensation, duties, etc. 2) The client will need to understand ALL the implications of hiring an employee 3) If you are to be live-in, is this 24/7 care? How would you manage that? 4) If you aren't 24/7, who fills in the rest of the time? 5) What happens if you become ill or indisposed? 6) What happens to you when they no longer need/want you? 7) Do you have health insurance through a spouse?
This is geared more for the hiring family, but there are important considerations for you as well. It is long, but it covers a lot. Unless you start your own business (not just hiring yourself out), then you are, by IRS rules, considered a household employee, NOT an independent contractor. There are SO many rules to follow, taxes to be paid, Workman's Comp to cover as well as liability insurance the client would want to have. Workman's Comp may cover your wages if you are hurt on the job, but most homeowner's insurance won't cover any lawsuit you might bring. I should think you would want to have some kind of insurance yourself, to cover any "damages" you might incur. Good relationship with the client and family is all fine and well, until something goes wrong. What if the client falls and is injured or worse, under your watch, or chokes on something? People today can be so unforgiving - they could sue you for negligence. Without some kind of insurance, would jumping ship be beneficial at that point? Legal advice might be recommended, so that you cover YOUR butt, but your client or the hiring person needs to know what THEY have to do as well.
Having recommendations to get paid "under the table" is irresponsible and could be costly in many ways (this is addressed in that link above) both for you AND for the client. Given that you are asking basic questions about this situation, you are likely going in over your head and I would hazard a guess that your client isn't aware of any rules about this as well.
You can always quit and work privately - but you need to read the contracts on both sides to see if there are any penalty clauses for doing so (usually financial notice periods on the "patients" and not working for a competitor on yours - of course you would not be working for a competitor if you were working for yourself but a clause about taking patients from the agency may apply. )
There are always ways round it, but there are also things to consider You would become self employed and would need to take out your own insurance The family may not agree and it could cause aggravation The "patients" may decide they no longer want you and you are then without work - you can hardly go crawling back to the agency you let down
Perhaps a compromise situation would be satisfactory, they cut down their hours with the agency, and you do some for them to make up the difference. - Someone may shop you to the agency of course. Think very carefully about this it may sound like an ideal solution at present but the present changes as can do so very quickly, and presumably you need to be in work.
The best approach would be for the client to agree a fee with the agency. It's negotiable, and that way everyone stays on good terms. If God forbid anything happens to you and they need the agency again - and from your point of view when this particular assignment comes to its natural end - you'll all be better off if all parties have been treated with respect.
Also, when you came to work for the agency, your employment contract/paperwork most likely included terms on quitting and working privately for clients of the agency.
You should check your contract, and the family should check theirs.
As others have suggested, you need to review the contract you signed with the agency, but also seriously consider whether or not you'll be paid enough to provide your own health care insurance, liability coverage, as well as hours you'll have to work, tax obligations and more.
BurntCaregiver wrote:
"As for non-compete clause contracts, these become null and void if you quit employment with the care agency and the family you will work discontinues their service. You are not 'poaching' their clients if these people aren't their clients. Once you leave the employ of the care agency, your business with them is finished."
I totally, and adamantly disagree, while I also respect that this is BC's position and liability. The contracts I read prepared by business law firms for clients, before hiring someone, generally included non-competitive clauses, for a valid reason. And the duration of noncompetition period was generally about a year after contract termination.
Quitting does not "extinguish" liability if the covenant provides for a duration after termination of someone's position. The OP can quit, but if she signed a contract which includes a survivable covenant, she is legally bound by that.
Break it, and she could face legal action.
The issue isn't limited to "poaching" clients; it's benefiting from an agency's work in establishing and operating a "going concern", which has significant business value, especially if a going concern is sold. That business (or agency) has client assets which from what I understand would be considered marketable.
The issue of not having recoverable assets for potential litigation against a former employee doesn't need to deter litigation. The agency may not choose to sue for damages, but rather for cessation of the offending actions. And that could include an injunction.
" I literally poached nine from my last care agency job."
I think this speaks for your position, which is not one I would support or recommend to anyone. I spent most of my life working primarily in commercial law but also worked in governmental law enforcement. While laws may not make sense, or be realistic, I would certainly respect them or at least not willingly challenge them. And business laws can be equally as devastating.
I worked on one suit in which a major Fortune 500 company sued a former employee who w/o permission used information gained before he left that company. The lawsuit was literally vicious, and scorching. If the defendant survived it w/o going bankrupt, I'd be surprised.
Anyone who "poaches" from an employer is gaining something - knowledge of existence of opportunities that he/she may not have had absent that particular employment. He/she benefits; the company does not.
BurntCaregiver, if you have statutory or case law citations supporting your interpretation, I'd be appreciative if you shared them. If I'm wrong, I'll willingly admit it. But my experience tells me that these are serious terms and conditions, especially in some areas where subject knowledge is gained on the job and leverages a worker's desirability for him/herself as well as to other potential employers.
It is NOT my intent to criticize your position, just to share what I see as legal insights from a broader perspective.
I respect everything you're saying and will let you in on a real and true fact here.
When a person can keep their mouth shut and not broadcast who they're working for, and if that family pays them privately, how will the agency they once worked for know a thing? Never let your right hand know what your left hand is doing.
I didn't go around proclaiming any care clients that I poached when leaving the last agency I worked for. Neither did my CNA friends that I shared the work with. Discretion. This way the agency and their lawyers are none the wiser on anything.
Twilliams doesn't owe the agency she works for a thing. Once she leaves their employ it's none of their business what she does. Once a family discontinues that agency's service they do not have to offer any explanation.
Like I said, the family who's hiring her privately can pay her in cash for a little while if it makes everyone more comfortable.
I have found that pretty much most of the time lawyers are like lions with no teeth. Their number one tactic is intimidation and most of the time a person gets scared, backs down and falls right into line. Or they pay a bill that's not owed. Or they let a boss or a nursing home pulling something underhanded get away with it. Not me. Lawyers don't scare me at all. When a person doesn't back down, they back off.
If they are getting funding to provide caregivers it is possible that they have to go through an "approved" agency. That was the case when the VA would send caregivers in. They had to be from an agency the VA had a contract with. On the other hand I switched programs in the VA to one that provided more BUT I had to hire caregivers privately. (Go figure!)
So if they are getting funds to help with caregivers they need to check to determine if their services would continue.
They should also check their contract with the agency.
- send you a certified mailing asking about you current employment status. And in it will be a copy of the NCC that you signed. By doing this, it gives you can opportunity to recognize the NCC and negotiate with agency a single payment for the NCC period. They tend to be 6 mos for low level workers.
If you do nothing & they kinda know your working for the family, then
- file a “breach of contract” lawsuit against you. They will be seeking a % of all wages paid for a period of time. Maybe 6 months. They win as you signed the contract & a judgement is placed against you, plus you also have to pay all legal fees and court costs. If you get a judgement placed, that debt will go to collection if you don’t pay it.
and
- they will bill the family / elder a fee based whatever was in the contract the family signed to enroll in the agency’s services for every week you continue to work for them. It may not be 6 months but longer. The family, unless they beyond love you, will likely stop employing you as it’s costing them extra to have you.
Someone will know your working for the family has happened and will let the agency know.
If the family is not hiring you correctly as a household employee and doing FICA, etc, reporting income & paying taxes to IRS, that morphs into other problems.
FWIW Biden just signed a EO on NCC for health care workers. But it’s more about the NCCs for physicians (mainly ER docs), RNs & RTs who work for big HCW staffing agencies. Those type of HCW had issues going to work in hospitals needing them due to Covid if the hospital was not already affiliated with the staffing agency. The EO allows the NCC penalty to be waived. It’s (the waiver) really upped the game & wages for travel nurses especially is what I’ve been told. I mention this because there’s a bunch of posts on other social media that all NCC are now unenforceable due to the EO. Not accurate.
If low-level workers are subject to a six-month contractual period where the former employers is entitled to know their employment status then the family hiring her privately should pay her in cash for that time period.
A care agency trying to sue a former employee for 'breach of contract' because they kind of suspect they might be working for former clients of theirs will get laughed right out of court.
"If you do nothing & they kinda know you're working for the family". Since when is doing nothing proof what that a person is working for a family that were former clients of a care agency? Since when is "kinda knowing" proof that the terms of a contract were violated?
Please. This is nonsense. I'm not a lawyer, but I'm pretty sure maybe suspecting or kind of having a feeling about something don't hold up in court.
Twilliams has nothing to worry about. She should take the private job, get paid in cash for a while, and keep her mouth shut. Everything will be fine.
You are being given plenty of relevant advice about that here.
Take it seriously.
For starters, I would never even consider signing such a contract and seek out other care agencies first.
Pay in cash. If your name is on such a contract, have someone else hire her in their name and sign her paycheck. Like your spouse, or adult child, or cousin, or whoever you want. Anyone else whose name isn't on the contracts. If some other person isn't under a previous contract with the care agency, they are under no obligation to that agency.
There are so many ways to get around care agency nonsense. So many in fact I might write a book about all the ways.
While the contract issues are important to consider, there are many more considerations that need to be addressed:
1) You both need to have some kind of legal contract to cover both you and the client regarding hours, compensation, duties, etc.
2) The client will need to understand ALL the implications of hiring an employee
3) If you are to be live-in, is this 24/7 care? How would you manage that?
4) If you aren't 24/7, who fills in the rest of the time?
5) What happens if you become ill or indisposed?
6) What happens to you when they no longer need/want you?
7) Do you have health insurance through a spouse?
Please see this:
https://www.payingforseniorcare.com/homecare/hiring-independent-caregivers
This is geared more for the hiring family, but there are important considerations for you as well. It is long, but it covers a lot. Unless you start your own business (not just hiring yourself out), then you are, by IRS rules, considered a household employee, NOT an independent contractor. There are SO many rules to follow, taxes to be paid, Workman's Comp to cover as well as liability insurance the client would want to have. Workman's Comp may cover your wages if you are hurt on the job, but most homeowner's insurance won't cover any lawsuit you might bring. I should think you would want to have some kind of insurance yourself, to cover any "damages" you might incur. Good relationship with the client and family is all fine and well, until something goes wrong. What if the client falls and is injured or worse, under your watch, or chokes on something? People today can be so unforgiving - they could sue you for negligence. Without some kind of insurance, would jumping ship be beneficial at that point? Legal advice might be recommended, so that you cover YOUR butt, but your client or the hiring person needs to know what THEY have to do as well.
Having recommendations to get paid "under the table" is irresponsible and could be costly in many ways (this is addressed in that link above) both for you AND for the client. Given that you are asking basic questions about this situation, you are likely going in over your head and I would hazard a guess that your client isn't aware of any rules about this as well.
Look before you leap.
There are always ways round it, but there are also things to consider
You would become self employed and would need to take out your own insurance
The family may not agree and it could cause aggravation
The "patients" may decide they no longer want you and you are then without work - you can hardly go crawling back to the agency you let down
Perhaps a compromise situation would be satisfactory, they cut down their hours with the agency, and you do some for them to make up the difference. - Someone may shop you to the agency of course.
Think very carefully about this it may sound like an ideal solution at present but the present changes as can do so very quickly, and presumably you need to be in work.
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