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  1. #1
    Join Date
    Mar 2015
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    1

    Exclamation Does a Non-Compete Agreement Apply if an Employee Becomes a Subcontractor

    My question involves labor and employment law for the state of: Florida

    My wife has been working for a mobile medical services company(Ultrasound) as an employee for over 3 years and will be referred to as Comp A. It is a small company of only 5 people. The owner decided to meet with a financial adviser to help with some of the paperwork. Her boss is now trying to make her a subcontractor. Nothing about her job is changing in any way. Which in itself is not legal as she meets most of the requirements to be classified as an employee. (She is told where to go, when to be there, uses their equipment and does not make her own schedule, is paid mileage, etc,) But that is a separate issue.

    Now that she will be made a subcontractor, does her non compete apply? She holds no trade secrets and strictly provides her own skills to her employer. Several of the doctors she works for through Comp A have already made it known that if she ever went out on her own, they would hire her in an instant. Now that she has effectively been fired and rehired as a subcontractor, her non compete, in my eyes, is not valid as long as she doesnt sign another one. The entire basis of subcontracting is to allow you to work for yourself and work for whomever you wish. Please someone let me know if she is legally allowed to work for the doctors she already has been working for for years and has a great relationship with. It doesnt seem to be any more than cutting out a middle man at this point, Comp A. If the doctors can save money and the wife can offer the same services she already offers, would she at this point be breaking any laws? Seems like a common sense business decision that is made all the time within the logistics world.

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Does a Non-Compete Agreement Apply if an Employee Becomes a Subcontractor

    Quote Quoting jsaint5
    View Post
    Now that she has effectively been fired and rehired as a subcontractor, her non compete, in my eyes, is not valid as long as she doesnt sign another one.
    No.

    A non-compete is an agreement to do or not do something at some future time. In your wife's case the future time starts with her termination from the company, generally regardless of whether she quits or gets terminated.

    By taking a independent contractor position for the company her employment is terminated and the non-compete period starts on that date and runs for the period stated in the non-compete.

    So the contract is valid.

    Whether it's enforceable or not depends on the terms and conditions of the non-compete.

    I'm not going to go into that because Florida has a statute that you can read (542.335)

    http://www.leg.state.fl.us/Statutes/.../0542.335.html

    And numerous analyses online.

    If she wants to be an independent contractor and doing so is of benefit to her former employer she should (or should have) gotten the non-compete waived (in writing) by the employer before accepting the independent contractor assignment.

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