KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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comment on Non-compete - non-solicitation / updated featured listings / ISC Free Private Meetings -schedule now
October 16, 2024
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Schedule your free private meeting with KK at ISC East
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If you're interested in a private [yes, it's free] meeting at ISC East [we will be meeting just outside the exhibit hall] please contact Stacy Spector,Esq at 516 747 6700 x 304 or SSpector@Kirschenbaumesq.com. Concierge Clients will have priority.
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comment on Non-compete - non-solicitation
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Ken
I'm in no way an expert, but it seems that a non-disclosure/non-solicit agreement would be the most fair for both sides.
Larry D
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Response
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Here are the basic arguments from the perspective of the employee and the employer.
The employee:
· Does not have ownership interest in the job
· Has no real commitment to the job other than doing the job and getting paid the agreed compensation and benefits and perhaps bonus incentives
· Needs to have the flexibility to move to another job without restrictions that may inhibit the ability to get another job in the only industry the employee knows anything about
The employer:
· Needs to feel secure that the business confidential and proprietary information does not get revealed to competitors
· Needs to feel secure that an investment in training and nurturing an employee will not result in that employee using the training to compete against the employer or assist another in doing so
· Needs to feel secure that an investment in training and nurturing an employee is going to be rewarded by an employee devoting sufficient time and effort so that the investment in training and nurturing was worth the investment in time, effort and money.
The inherent conflict between employer and employee [between management and worker, those in charge and those in not, between haves and haves-not, rich and … less than rich, between those with the bull horn and those tasked with rowing the boat] is inevitable, and I think that’s true in any society. It’s not going to change. A balance has to be reached and I think it has, without meddling from the FTC and how should I put it, those who think “joy” is the agenda for running a country as complex as ours has become, or any country. But in this country we have a fairly good balance that has been fashioned by the Courts in decision after decision in cases involving enforcement of restrictive covenants in employment agreements. Only a few states have laws that deal with the issue, such as California [and a few others]. All other states have court decisions that more or less hold that employment agreements with restrictive covenants need to strike a balance and be fair to both sides. What’s fair often depends on the circumstances of each situation, each relationship, the nature of the business, the employer investment in the employee and other factors pertaining to the specific relationship. To borrow from another current political agenda, one needs to engage in “common sense”; be reasonable to each side.
Coca Cola may very well have a right to restrict its upper management from working for Pepsi, worldwide. But XZY Alarm Co with 500 accounts in Albany, NY can’t restrict its employee from working for an alarm company in Riverhead, Long Island, NY. They just aren’t competitors.
There are many ways to fashion restrictive covenants in Employment Agreements and if the parties engage in common sense, balancing the real need of the employer and the employee, the agreement should hold up. Get the K&K Standard Employment Agreement and all employees sign it. There are also ways to manipulate provisions that might otherwise be untenable. For example, if the employer doesn’t want the employee to take a job with a competitor then perhaps that ex-employee will need to be paid for the period of the restriction, sort of to take the employee out of the market long enough to make them less threat to the employer, or less useful to the competitor. What we don’t need is more laws from Congress, states and certainly not from regulatory agencies guided by and seeking to spread joy.
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Featured Listings for Sale
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For Sale: Southern California: commercial Net RMR $17,000.00; approximately 80 customers with 324 locations. No fire. Concentrated in Los Angeles, Riverside, San Bernardino, and San Diego counties. Third party vendors: Brivo, Eagle Eye, Cradlepoint. Equipment: Genetec, Brivo, Eagle Eye, Ocularius, DMP, Dell, Axis. Monitoring center: NMC. Most under K&K contracts. Panels: DMP. Significant EBITDA. More information requires a K&K NDA. Contact Ken Kirschenbaum at 516 747 6700 x 301 or Ken@Kirschenbaumesq.com
For Sale: Nassau County, New York. approx 221 alarm accounts. residential 190; commercial security and fire 31; RMR approx $13,230.00 [res $8844; comm security and fire $2118; Inspection RMR $2268; Resideo / Honeywell; some Radionics. Vista 20P / Vista 128BPT. Most accounts on updated K&K contracts. Contact Ken Kirschenbaum,Esq at 516 747 6700 x 301 or Ken@Kirschenbaumesq.com. K&K NDA will be required for more information.
For Sale: New Jersey. 90 alarm accounts, 43 residential; 13 commercial security; 29 commercial fire. Central Station: Rapid Monitoring RMR $4100 net; fire inspection RMR $1740. Equipment Honeywell, System Sensor, and M2M; Honeywell panels; one Napco account. 95% are in NJ from Alpine down to LBI. The remaining 5% are in PA and NY (not NYC); all on K&K contracts. Contact Ken Kirschenbaum,Esq if interested. 516 747 6700 x 301; Ken@Kirschenbaumesq.com; K&K NDA will be required
For Sale. Phoenix area, Arizona., 181 alarm monitoring accounts [115 res; 66 commercial; commercial fire 5]. Net RMR $4700.00; DSC panel and equipment; Microkey softrware. Older contracts for most part. K&K NDA required for more information. Contact Ken Kirschenbaum,Esq at ken@kirschenbaumesq.com or 516 747 6700 x 301.
For Sale: Lewisburg, West Virginia. Alarm accounts [K&K contracts]. RMR monitoring: $9,872; # of accts: 338 % res: 74%; % comm sec: 20%; % comm fire: 6%; Inspection and service all per call. cs:Security Central, Statesville, NC. On segregated lines; Accts concentrated: Greenbrier County; equip used: Panel: QOLSYS IQ4; software: Mobile Tech, Alarm.com. K&K NDA required for more information. Contact our attorney Ken Kirschenbaum for details. 516 747 6700 x 301; Ken@Kirschenbaumesq.com
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com