Is a noncompete valid if a nursing agency is getting rid of home care case to keep nurses away?
My mom is very ill (has ALS). We have had the same nursing agency for around 7 years (provides nursing care 16 hours a day). We had a recent disagreement with them as we wanted rid of one of the nurses that was staffing our case and the agency did not agree so they are terminating us as a client. They have threatened the nurses that they cannot go to a new agency with us because they signed a non compete. We got a hold of a copy from a nurse and it states
"I acknowledge and agree that because Agency invests time and money in the process of hiring staff and personnel, I will not seek work at any customer of Agency, under any conditions, until my employment with Agency has terminated for at least one year. I further agree that I will not solicit any Agency employee to leave Agency employment.
I further acknowledge and agree that I will not seek or accept employment in any capacity from any customer of Agency for at least 180 days from the last day of that assignment."
As they are the one's dismissing us, I am wondering if this non compete applies to our nurses? They are using the term "customer" and we will not longer be their "customer" after we get a new agency (which the agency is forcing us to do). Does the agency have rights regarding the nurses? Also, they Agency is small and does not have any other employment for the nurses.
Answers (1)
That being said, a noncompetition agreement is only enforceable to the extent that the employer has a 'legitimate business interest' in enforcing the agreement. A legitimate business interest is NOT that the employee may compete - instead, it is that the employee has the employer's trade secrets; or was trained by the employer and introduced into the industry; or that the employee generated and/or maintains the customer relationships of the employer. In this instance, there does not appear to be a 'customer relationship' anymore, as the employer terminated you as a customer. If you are the only customer that the employee serves, then I do not believe, based on the facts in your question, that the noncompete would be enforceable.
If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.
/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com
posted by Christopher Ezold | May 11, 2010 07:36 AM [EST]
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