Contractor vs Empoyee and non-compete clauses

There is no single test for determining if an individual is an independent contractor or an employee under the Fair Labor Standards Act. However, the following guidelines should be taken into account:

The extent to which the services rendered are an integral part of the principal’s business
The permanency of the relationship
The amount of the alleged contractor’s investment in facilities and equipment
The nature and degree of control by the principal
The alleged contractor’s opportunities for profit and loss
The amount of initiative, judgment, or foresight in open market competition with others that is required for the success of the claimed independent contractor
The degree of independent business organization and operation
Whether a person is an independent contractor or an employee generally depends on the amount of control exercised by the employer over the work being done.

These courts also use the “right to control” test. When the hiring party controls the way work is carried out and a product is delivered, the relationship between the parties is employer/employee. If an employer does not have authority over how a party accomplishes his or her work but simply give requests an outline, the relationship between the parties is that of hiring party/independent contractor.

A non-compete clause (often NCC), or covenant not to compete (CNC), is a term used in contract law under which one party (usually an employee) agrees not to enter into or start a similar profession or trade in competition against another party (usually the employer).

Contracts in restraint of trade are a variety of illegal contracts and generally will not be enforced unless they are reasonable in the interests of the contracting parties and the public.

Contracts in restraint of trade if proved to be reasonable can be enforced. When restraint is placed on an ex-employee, the court will consider the geographical limits, what the employee knows and the extent of the duration. Restraint imposed on a vendor of business must be reasonable and is binding if there is a genuine seal of goodwill. Under common law, contracts to fix prices are legal. Sole supplier (“solus”) agreements are legal if reasonable. Contracts which contravene public policy are void.

In Massachusetts, a judge is permitted to “blue pencil,” or rewrite a non-compete so that it is reasonable.

The legal system puts a high value on a person’s right to earn a living.

Non competes should be narrowly tailored to protect your legitimate business interest; limited in time, space, and scope; consonant with public policy;

More on legislation on non competes:
http://www.llrlaw.com/ca_icm.htm

Illegal Contracts
https://en.wikipedia.org/wiki/Illegal_agreement

Notes and Sources

http://www.hrexaminer.com/is-your-non-compete-agreement-enforceable/

WorkPlace Complaint Form

https://www.eform.ago.state.ma.us/ago_eforms/forms/npwc_ecomplaint.action
see Independent contractor misclassification

Doing business with the state
http://www.mass.gov/portal/business/government/

State Senator Jason Lewis:
An Act to Protect Trade Secrets and Eliminate Non-Competition Agreements: This bill would ban non-competition agreements and adopt the Uniform Trade Secrets Act in Massachusetts in order to address trade secret misappropriation.

Gary was hired as an independent consultant.

rsisnip1

He can not work with anyone building an electronic filing system or mobile application.

He can not work for the State of Massachusetts.

rsisnip2

http://www.mass.gov/ago/doing-business-in-massachusetts/labor-laws-and-public-construction/massachusetts-independent.html

http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/independent.html

Illegal Hire
http://www.rbfpc.com/content/employee-vs-independent-contractor-ignore-your-peril

The agreement I signed

What I applied for:

Join our small company of seasoned pros, skip the corporate bureaucracy and politics, enjoy autonomy, ownership over projects, and plenty of
challenges to keep you engaged and growing.
We want someone who enjoys talking about software architecture, systems design, production stability, and getting the job done right.
We have several projects going, you pick up one or two and bring them to a successful conclusion.

Desired Experience:
Web Service: SOAP, WSDL, XSD, XML, AJAX, JSON
Back-end: Linux, Apache, MySQL, PHP, Node.js
Front-end: JavaScript, CSS, SASS, Ext JS, Sencha Touch, jQuery
Strong PHP and JavaScript skills
Comfortable with a VCS/SCCS: Git, Subversion
Familiar with automated software testing: Unit Tests
Production support of applications
Business Analysis and Project Management skills

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