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We have the best caregiver ever. She laughs, teases and engages my husband every day M - F for 3 hours. The company that brought us together in December has not been honest or reliable. She finally gave her 2 wk notice and went with a new agency that assured us that she could keep us as a client so we terminated as well from the first company ( I had interviewed with them prior to meeting the caregiver as I was at my wits end with the company as well). I was well aware that my contract with the first compant prohibited me from hiring one of their employees privately. However, I did not realize there was a clause that said I could not employ her from another company for one year! Their lawyer has given me two choices: either terminate her from caring for my husband OR submit $15,000 to the company by Feb. 17th. This was in an e contract that I did not even have a copy of until I requested it from the lawyer. This has caused me so much added stress and grief as I think about what this means for my husband. He has flourished with her. It is not like the company invested any time or effort in training the caregiver she is a CNA. They have lost several caregivers due to the dysfunctional office.... Any suggestions???

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My advice (as a lawyer) would be to write down for yourself a long list of all the ways in which the former company breached (did not live up to) the clauses in the contract about what they were going to do. Then inform their lawyer that if they proceed with a claim, you will file a substantial counter-claim for their breaches, plus costs. Don’t provide all the detail of the counter claim, just enough to make it clear that it will have teeth. This means that they have at least as much to lose as to gain. You will also dispute the validity of the so-called contract and this clause, with a separate claim for damages.

Once you’ve done the list, it might help to get a lawyer to write the snotty letter. Perhaps write it yourself first, and follow it up with a lawyer’s version if yours doesn’t do the trick.
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Sankay Feb 2022
Thank you so much...funny thing in reading the contract, I really don't see that they promised anything! All I have are lies over the phone, and many days without any service from them and a copy of an email sent to the owner that finally got more consistency in actually sending a caregiver. I do hope I can speak with a lawyer tomorrow. I really appreciate your time!!!
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You didn't hire her, you hired an agency that sent her as their employee.

That would be my stance and I wouldn't budge.
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Sankay Feb 2022
Yes!
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Or here's the third option the lawyer probably didn't tell you.

Hire this wonderful caregiver and pay her with an envelope of cash every week until the one-year contract period is up. This woman takes good care of your husband and you like her as well. Offer her this and she'll take you up on it.
I can't tell you how many cash side jobs I took from clients and their families in the days when I was agency employed. Everyone was always happy with these arrangements.
Why should your wonderful caregiver or you have any loyalty whatsoever to the crappy, unprofessional agency that formerly employed her? Believe me when I say, these places have ZERO loyalty to their caregivers and they offer us nothing. No training (we come pre-trained or don't get hired), no support, and no benefits of any kind.
Before I went private cases only, I screwed the agency every chance I got. Why not? They made a fortune off of my service while I made just above minimum. When I could wet my beak a little bit extra, I always did.
Hire your good caregiver privately and pay her in cash for a year. You won't regret it.
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Katefalc Feb 2022
Excellent advice. I feel so bad for these employees. The agency gets $35 an hour and pay the staff crappy. They work their rear ends off and get nothing in return. I had to sign the contract that I also would not give them gifts ! The heck with that… I gave her flowers, candy, cookies ect and when she left I bought her a nice gift. Why not? I loved her for her kindness and great care she gave my husband and emotional support she gave me.
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MargaretMcKen has the best response and she is a lawyer. Don't be intimidated by the former company, fire right back at them!
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BurntCaregiver Feb 2022
Amen to that, sister.
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What you signed is a non-compete clause and the aide probably did the same thing when she was hired. The second agency should be very aware how this works. My daughter, a LPN and later an RN, has signed non-compete clauses her whole career so common in the health field.

What it looks like is the aide quit and to get around the clause thought by going to another agency you could hire her through them. You could be considered involved in aides decision to go to the other agency. IMO, you will need to terminate her.
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Sankay Feb 2022
Thank you for responding. I can not even find my copy of the contract and wonder if I ever got it. I requested a copy from the lawyer...I honestly was not aware of the clause about not being able to hire our caregiver from a different company. Who would have thought that would even be an issue? My family has come to that conclusion as well unless I want to spend $15,000 to keep her. Hope to get legal advice tomorrow.
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Who would ever work for a company that made you sign a clause like that? You'd never be able to leave and then support yourself in your chosen profession! I would have an employment/labor law attorney review what you *and the aid* actually signed. If she's that good, it's probably worth knowing whether their version of a no-compete is enforceable or not.

I tell you what: if it is a legally binding, enforceable contract I'd go onto forums and Nextdoor.com and warn anyone who will listen to be aware of working with that company. We're in a labor shortage -- it's ridiculous to expect potential employees to sign away their livelihoods like that for a year.

FYI this is a cautionary tale to employees to *never* sign something unless you actually read it first, question it and fully understand it's implications for you. In court, ignorance is not a defense.
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AlvaDeer Feb 2022
Exactly, much better than my recommend of elder law attorney. It is employment labor lawyer definitely and I think worth the cost to keep her.
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I seriously doubt this company will sue you. Did you SIGN an e-contract, or is this never signed?
I also don't believe you can be prohibited from using another company that "just happens" to have this woman available.
I would consult your own elder law attorney for an hour of their time if this woman is this good and you want to hire her.
If an attorney does tell you that it isn't worth your hassle and possibly ending up in court, then, to be honest, it isn't. For myself, I kind of like to scrap, so I might tell them they are going to be famous if they choose to sue me in court.
And YOU cannot terminate her from care. Your contract is with her COMPANY, not her.
Lawyer letters are a dime a dozen. They are bluffing. But having said that it isn't something I would gamble on if I wasn't willing to make them famous.
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Really, the aide probably signed the Contract. Like I said, it looks like she quit one agency and went to another probably thinking she could get around the clause. No problem in her going to another agency she just can't care for a client she had with the other agency. These contracts are usually only good for a year.

It is ridiculous to have this clause for someone who makes not much more than $15.
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AlvaDeer Feb 2022
Many of these clauses when taken to court get laughed out of court. Like the thing you sign that says you won't sue your MD. Worthless paper. But who wants to go to court to prove that? So I think a few minutes of time with a labor law attorney would settle this one for the OP. I agree that the careworker likely signed this whether our OP did or not. Now I am worried about this lawyer. THAT IS EXPENSIVE. Lawyers should have choice of hourly rate. This is a simple question and doesn't need research. I used one and one half hours time at 350.00 hour for Trust and Estate lawyer during my brother's entire estate settlement. I think our OP may be getting ripped off now by a lawyer.
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Just as an FYI (not a put-down to you). It is very common for agencies to have policies of not allowing clients to privately hire caregivers they arranged. Temp agencies for other types of jobs do this too. Agencies would go out of business if their clients hired their best employees. I have never heard of the $15,000 penalty but would expect some kind of settlement. That possibly is what they figure is the value of the income they would lose for one year by losing that one employee. The purpose of such a policy is usually is to keep clients from hiring the employee so they don’t have to pay such a high rate but in your case you are still paying agency fees. Somehow it does not seem the same if she is with another agency and they send her to you. It would be an interesting legal test case but expensive way to find out. Read the fine print to see if it refers to “privately” hiring her… which is not what you are doing. I definitely will start asking up front about these type clauses.
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Get a lawyer to go over the contract and advise you.
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