Non-Compete Question

<p>About 5 months ago, i took a photography class in which the photographer said i could work off the price of the class. We then decided I would stay on as an "apprentice"/second shooter. When telling me about this arrangement, she told me that if i worked for her i would need to sign a 3 year non-compete agreement within a certain radius. She also said that once i worked off the class (which I did in about 3 weeks) i would be paid an hourly rate. I worked there about a total of 5 months and was never paid in money. It turned into her telling me that she would buy me equipment, and eventually she could pay me, etc. It never happened. I also NEVEr signd a non-compete agreement. Essentially she never paid me, we never signed anything, i was never technically an employee, and i was working about 20 hours per week. I told her i wanted to cut back my hours, and she then said i had to cut back on my shooting, etc, and let her take someone else as a lead second shooter, or I could leave her business but i would have to follow her non compete agreement. She also said that if I quit i would have to bring her my computers so she could delete all the programs she put on my computer such as Lightroom and photoshop. i told her our non-compete agreemtn was null in void, i never signed anything, and she never paid me, so technically she didn't even uphold her end of the bargain. she said i have to follow it because it was verbal. I never technically agreed to anything, she told me that i would have to sign something, but i never did. I also never intended to sign anything untill she actuall paid me, but she never did. She's saying she did pay me with experience, and gas money and food that she fed me while i was at work, but that was never something i agreed to, i agreed to an hourly rate. I think this is all ridiculous, she never paid me, i never signed anything, but she's basically threatening me saying that she is "very familiar with the law". I've been advised by family that I don't have to follow any non-compete agreement that I never signed, and I don't have to delete programs that she gave me- she never once said that if i quit i wold have to delete these programs- she gives them to a lot of her friends, not just "employees". Does she have a legal leg to stand on, or is she just full of it because she doesn't want me to compete with her, and is mad that i'm leaving her business. </p>

<p>Jennifer,<br>

<br /> Wow! Very upsetting. First - the obvious recommendation. It might be worth your while to consult a lawyer just for peace of mind. I don't know if you're the litigious type, but you could always consider suing her for back wages. <br>

Now for a more candid thought - generally speaking, even if you had signed a non-compete, it would be wicked hard for her to enforce it - generally, hard to prevent someone from earning a living and 3 years is an uneforceable amount of time. The one exception I can think of is if you tried to take any of your former teachers clients that she introduced you to (if you happen to get a client she has worked for in the past).<br>

Maybe this non-compete thing is a red herring to keep you from pursuing your back wages.<br>

Take a deep breath. You'll be fine.</p>

 

<p>Jennifer -</p>

<p>As mentioned already - find a good lawyer and get their opinion. </p>

<p>My guess is that this will provide them with a good laugh and chuckle for the week. Non-competes are difficult to enforce (and that's when they are in writting) and especially difficult when they go for more than a year.</p>

<p>Typically the enforcement is limited to areas such as Radio, TV and Newspaper (media). In Radio and TV where listeners and viewers are king they are more easily enforced. Other areas they are typically limited to - you can't bring files or contacts with you from one job to another. You may be limited to contact with previous employer's clients, unless they approach you first.</p>

<p>Good Luck.<br>

<br /> Dave</p>

 

<p>Actually it's kind of funny 5 out of the 6 events/engagement sessions I shot during the past 5 months were MY clients that hired me for the events before I even met her. I did some portraits with her, but those were all people that were friends with her, no clients that i would try to take, or even want to take from her. I didn't think that she had a legal leg to stand on, but she seems to think so and is making that quite clear. just don't want to deal with the drama, ya know? thanks for the advice, feel a little relief! And no, i'm not planning on trying to get the wages, just want to wrap things up and hope it all goes away!</p>

<p>If you plan on staying in the area, speak kindly to her, never badmouth her to anyone, and try and resolve this peacefully. Tell her everything you can to encourage her not to badmouth you. Tell her you won't shoot past clients of hers for a long time, tell her will delete the programs on your computer (they are illegal if you don't own a license) but I don't think you need to give her access to your computer. Tell her how grateful you are for the experience and that you really regret not having this all down on paper ahead of time so that you both could have known the route this relationship would follow.</p>

<p>You certainly can't be restricted in your shooting, but I really suggest minimizing your contact with her as much as possible. Out of site and out of mind. Let her cool off so she can slowly come to think of you as a peer and not as a student/staff. Be purely professional, gracious, and friendly to the full extent you can.</p>

<p>And finally, make sure your photography is awesome and then tell everyone it is great because of her... :) (kill her with kindness...)</p>

<p>There are a lot of issues here. Non compete agreements, verbal contracts, contract formation, contractr consideration, breach of contract, independent contractors, potential software license infringement and more. None of them concern photography issues. So you are essentially asking photographers for legal advice which is akin to walking in to a law office to ask for photography advice.</p>

<p>I hope the software license situation isn't infrigement. Did the teacher have a license to let students/others/you use the programs in the way described?</p>

<p>I'm sympathetic to your story as it sounds like your being jerked around but its important to get the information from reliable sources. My personal unofficial opinion, however, is that Jonathon or David gave helpful responses.</p>

<p> </p>

<p>You have several issues here most of wish falls under what state laws dictate. Right now I too will suggest looking at getting Lawyer. With that said, from everything I read from your post, your former employer would have some very expensive fines if she tried to sue you.<br>

Lets start with the easy one first. The software.<br>

There are just a few possibilities with the software:<br>

(1) She violated the user agreement by putting on too many machines.<br>

(2) She has site license and loaded it on your machine, which could be considered a gift since you have no written agreement as to what happens to the software on your departure.<br>

(3) She gave you pirated software. In which case it is best to remove it.<br>

If she is giving away programs you could simply call Companies that produce the software and report your licensing concerns.<br>

A noncompete agreement depends on whether you live in a right to work state. I work in California a right to work state. Those noncompete is virtually non enforceable unless you raided company files for clients. A non signed agreement is worthless.<br>

If your former employer and you can't reach an agreement, I would suggest gather every email, electronic communication, written note and receipt and take it to your local state board of equalization. If what you said is true then have nothing to be concerned about.</p>

<p>The burden of proof lays with the Plaintiff.<br>

If you sue her for back wages, you have to prove that you were an employee, worked the hours and did not get paid.<br>

I did not get the impression that you intended to go after her for unpaid wages.<br>

If she sues you for "competing" i.e. Breach of Contract, she has to prove that there was a contract. Your statements indicate that IF there had been a contract, she breached it first. These are all matters for the Court to determine.<br>

Sounds like she stands to lose a lot more than you. It's time for her to put up or shut up.<br>

I would ignore her and go about my business and more importantly my life. If you can't ignore her - discuss it with a lawyer.</p>

<p>Jennifer:</p>

<p>I would put the situation behind me and go about building my own business. Until you are actually sued for breeching the verbal non-compete, don't worry about it. Properly written and drawn up non-competes are very hard to enforce. Most states are "right to work" states. Lack of a written contact would make a non-compete virtually impossible to enforce.</p>

<p>If you don't have a license for the software, then remove it. Otherwise, you are breaking the law.</p>

<p>Whatever happens, don't say anything negative about her to others. If the discussion ever comes up, simply state that you have differing business methods and drop it. Let her bad mouth you. I don't give my business to negative people, and I assume there are plenty of people that think in similary ways.</p>

<p>Eric</p>

<p>I am assuming you are in the US. Like most of the posters, I agree that you shouldn't worry about the alleged non-compete agreement. They are notoriously hard to enforce when well drafted and limited in scope. In this situation, enforcement is a pipe dream.<br>

I know you are getting advice to walk away, but this situation is pretty egregious. It sounds like you worked with her for 3+months at 20 hours a week, and never got paid. Even at minimum wage, that is significant. I think it is worth getting a consultationto find out what your remedies are in your state. You could check with your state's labor department, or check local labor lawyers to see if they offer a free consultation. If you are near a law school, you can call and see if there is a clinic or pro bono program. You could also check community legal aid, but with budget crunches, they are likely directing resources to more life and death matters, ie foreclosure/evictions etc.<br>

It sounds to me like she is in the wrong, knows it, and is trying to intimidate you out of the picture. I would make sure any future communication is in writing. Gather up any emails/corespondence, and try and itemize what work you did to determine what your wages should have been: dates and times of events you worked, what tasks you completed for her, etc. Send her a bill for your time. And if she sends you a check, make sure that she paid SS tax and other withholdings. I don't suppose you ever filled out tax paperwork for you, and that she verified you were authorized to work in the US?<br>

Good luck, let us know how it works out.</p>

<p>Hey, slavery was abolished in the US over 100 yeras ago. I'd call her bluff.</p>

<p>An indentured servant? That is kind of funny. I wonder about this person's psyche. What state are you in BTW?</p>

<p>Jennifer,<br>

First, consult an attorney for peace of mind. This can probably be done over the phone because my guess is that no lawyer wants to waste office time on this. <br>

If you didn't buy the software, it's not yours. Although you don't own the software, neither does she unless we're talking about the original discs. Would you want your customers taking your digital files and making their own prints instead of buying them from you? My guess is no, so don't do the same even if others do. Play fair here. <br>

Aside from that, she's bluffing. She would have to come after you and she doesn't seem like the type who follows through on anything. This is your word against hers and who's lost anything here, really. You worked and picked up some knowledge. Even in states where "non-competes" are enforceable, it depends on the scope of the agreement, meaning the size of the area and the length of time. In many areas though, if your "boss" has a certain way she does something and you "steal" that idea, or you use customer lists, etc., that's not tolerated, with or without an agreement. This is why you should call an attorney and find out what's pertinent in your area.<br>

Delete the software, buy your own, call the attorney and you'll be able to sleep well tonight....-Aimee</p>

 

<p>Definately don't give her any access to your computer under any circumstances. Who knows what she can do to in, including deleting your other things, adding a backdoor, damaging other things, etc. It was illegal for her to put the software on there, so if you talk to a lawyer see if you can use that against her without hurting yourself.</p>

<p>Hey Jennifer,<br>

So I've been thinking about the absurdity of your predicament some more. I think the collective photo.net community has done a wonderful job providing various perspectives. And I am sure you will agree, that we are ALL entitled to a non-compete agreement from you - something reasonable, say 30 or 40 years. For the non-pros, this would mean that you would never take a picture of anything we've ever thought of or might consider shooting. Of course, we can constrain the geography to the planet earth. Please do send me your professional glass whatever lighting equipment you might have. I spoke with a lawyer and I am sure this level of non-compete and request for your equipment is legal :-)<br>

In all seriousness - I think the horse may have been beaten to death - but my point on considering demanding payment was to put a little pressure on your former teacher. While handling things amicably is always preferable - it sounds like your teacher is trying to intimidate you - trying to create leverage and distract you from what you from the back wages she owes you.<br>

I do hope this works out well for you and that you find a lawyer who can help give you peace of mind. Please let us know how things work out for you.</p>

<p>You've been scammed. You fell for it.</p>

<p>Fortunately, you never signed anything, so you're not bound to anything she is requiring from you. If you worked off the class fee, you should have questioned her after the three weeks you said it took to pay it off. You didn't, apparently. So you worked for this photographer, and didn't get paid, like she said you would, for over 4 months. Who's the fool here?</p>

<p>Like I said, you were scammed. Get over it. Lots of people get scammed for a lot more than time lost. Let it be a lesson to you. And don't let it happen again!</p>

<p>As for the software she put on your computer, let me say this. SHE HAD NO RIGHT TO PUT IT THERE IN THE FIRST PLACE, AND HAS NO RIGHT TO TAKE IT OFF! She has no right to even touch your computer.</p>

<p>The software company, Adobe, does have the right to remove it. You should remove it yourself, you didn't pay for it. UNLESS, it was part of the cost of the class and was student versions through a certified education institution. I which case, you did pay for it, but through bargaining with the teacher. But the teacher would have had to pay the cost of the student versions of each program for it to be "legal" on your machine. I doubt this is the case. Best to remove the programs, or talk with Adobe about paying for a license to make them legal.</p>

<p>This Teacher/Photographer is not a good role model for you. She is certainly not an ethical professional. If she is a member of PPA or WPPI, I suggest you relate your story to each of these organizations. This would be a serious violation of ethics and could possibly revoke any standing in those organizations. Legally not a big deal, but still could be bad for her reputation in the professional community. She is certainly a bad example to professional photography. She should be drummed out of the profession. If she is a teacher, she should be banned from teaching, and lose her teaching credentials. She has broken the law.</p>

<p>Good luck in your future. Learn from your mistakes, and naivety, and get on with your life. And be more ethical in your photography than this poor example of "professional".</p>

<p>Edit:</p>

<p>As an after thought, if you report her to any organization, you must have proof of the accusation. Other wise, you may be sued for slander and/or liable. So be cautious as to what you can back up.</p>