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follow up to commencement date and other contract issues / comment on competition from former employees May 12, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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follow up to commencement date and other contract issues / comment on competition from former employees
May 12, 2018
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follow up to commencement date and other contract issues from May 7, 2018 article
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Ken,
    You wrote to Rich and Kind,(what kind of name or self description is that?   Does he use that with clients?),
    "As monotonous and mundane you find the constant conversation about contracts - and the pitch to keep the contracts current - you would be surprised to hear all the questions I field daily.  Some questions are more routine than others, and often a question will lead to a modification of the contract to make it clearer and more easily understood."
    As do I, almost every day speaking to alarm companies for SARPG about 
getting your updates
what changes they can accept
    And for USA Central Station, my primary employer 
Negotiating the USA agreement with end users
Negotiating on behalf of our dealers their contract with their potential new customers 
    Is it "monotonous and mundane", yes, is it part of the full service I offer my customers, yes it is.
    Thank you for the best contract forms from which I work with, because my success rate for signature is 95% with no change, 4+% with a change, and less then 1% lost in the process. 
Bart Didden
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Ken,
    Very good…and kind…response to the “RichAndKindMan.”
David Coughlin, CPP 
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Ken, 
    I have a question about your recent article regarding former employees. You mentioned it is not too late to get them to sign an employee agreement. My question is, what if they refuse to sign?  My brother actually ran into this situation where they came to him after being employed there for 10+ years and they wanted everyone to sign a no compete. He asked his boss what would happen if he refused to sign it and his boss told him he would be terminated, so he signed it. Wouldn't this be a case of signing under duress?
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Response
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    I need to be circumspect with this response because employment agreements with restrictive covenants are generally enforced, at least to the extent necessary to protect the legitimate interests of the employer, that may not be the case is every jurisdiction.  And some jurisdictions may interpret an employer's legitimate need more narrowly than another state.  If you have specific concerns you will need to engage us for an opinion which will require research in your jurisdiction.  
    Other factors may also come into play, such as whether there is an employment agreement in place already, or a company handbook with sufficient detail so as to constitute an employment agreement.  
    I have suggested to clients that all employees be required to sign the 
Employment Agreement.  Existing employees should also be required to sign.  As long as you are not discriminating among employees requiring existing employees [absent a specific statute] to sign an Employment Agreement would not be duress and would not be improper.  You use the word "duress".  It may not be duress to require all employees to sign if they want to retain their position, or if they want to qualify for advancement.  However, if you present the Employment Agreement to an employee and tell them they have 5 minutes to sign it or clear out their desk, a court would probably deem that "signed under duress" and refuse to enforce the agreement, especially if it is otherwise on the fringe of unreasonable.
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comment on competition from former employees from May 5, 2018
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Ken,
    In response to the Competition from former employees…
    Two additional items I would note – 1. Be aware of what type/length of non-compete clauses are valid in your state as this varies by state and 2. Before you seek action against an employee, you need to consider how/why the employee left the company.  Basically, were they upset with anything when they left?  This is important to evaluate because in the event you do take action, you stand a very high chance of being counter-sued and that action would normally be something related to a dissatisfaction taking place during their employment.  Employment Practices Liability (EPL) is a real exposure regardless of what state you are in.  The cost to defend an EPL claim can hit six figures fairly quickly so you need to determine what it is worth to you to go after an employee. 
    That being said, there is insurance available for EPL claims.  Security America & US Risk have an EPL Insurance program available to industry members.  While employee contract issues are not generally covered by any EPLI Policy, claims related to discrimination, harassment, inappropriate employment conduct, wrongful termination and wage & hour issues are coverage (list is not all-inclusive).  Reach out to Rhett Butler or Crystal Jacobs at 866-315-3838 for more information.
Crystal Jacobs, RPLU | Vice President
US Risk Underwriters, partners with ESA & SARRG
usrisk@securityamericarrg.com

www.securityamericarrg.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
516 747 6700
www.KirschenbaumEsq.com