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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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If anyone is still hanging on to my tale of woe, there is more. Traveling today and found e mail from my $675 lawyer. Basically stating the 30 day extension was denied and he offered 7 days instead
He asked if my lawyer was also representing the caregiver. My lawyer directed me to get back to him. I called from the car and was told that I can get on the list to speak with him on Wed. @10:30! The extension is until Thursday. My lawyer had the above information 3 hrs after contacting the other lawyer last Thursday. My lawyer sent me the information today, Monday @9:30. It is not looking good for keeping the care giver unless I am willing to add $15,000 for original company plus the $675 to the lawyer. Ugh!!!
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AlvaDeer Feb 2022
Time to figure out what mountaintop you wish to die upon. I wouldn't pursue this. I think you have added a mess of an attorney to the rest of the mess. Time to drop everything. Keep the name of this gal. You can hire her in about 10 months. The truth is that these threats are almost NEVER carried through on by these companies. But why would you want to gamble when your plate is already quite full. Move on. The world is full of good caregivers. This is one of the downsides of hiring from an agency; there are many upsides and many downsides. So sorry and sure do thank you for keeping us updated. An attorney you cannot talk to isn't worth the powder to......................well, you know the saying. Looks like this one is doing real well charging folks twice the going rate for 1/4 the work. This wouldn't wash in my town.
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caroli1,

What would be all that bad with hiring the wonderful caregiver and paying her in cash every week until the contract with the care agency she used to work for is up?
It's not dishonest or wrong. Nothing bad is going to happen to anybody. I've taken side work and some cash work for 25 years. Never had a problem.
What is really dishonest and wrong is how a care agency screws their employees over and the people who use their services.
If for some far-fetched reason the OP and the caregiver have a falling out and the caregiver wants to get her in trouble, impossible to do because there's no proof of her being employed with them because she's paid in cash. Same thing if the OP wants her gone for some reason. For all intents and purposes, in such events as these the caregiver is merely "visiting" and helps the family out (without pay) once in a while. No one gets in trouble.
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Unfortunately if you signed a contract with them and you hire a former caregiver of the areas you have to pay a fine, and it’s a hefty fine. I had the same issue with my agency and the caregiver that I love left for another agency, And I was unable to hire her because of the contract I signed.
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As said, this non-compete clause is trying to be banned by some States. It protects the employer from losing good employees to the competition. And as I have said, the employee has signed something agreeing she can't quit and work for a client that had been with the agency. Its stealing their client. I will am surprised that the aide has not received something from the lawyer too.

Anytime you sign an employment contract, this clause is probably in it. But, we are a competitive country and as such we should be able to work anywhere we want to and hire anyone we want to.
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Geaton777 Feb 2022
I agree JoAnn. The way an employer keeps good employees is by valuing them and treating them accordingly, not by legally chaining them to their company. It is archaic and unethical and just stupid. The point of a non-compete contract is so that former employees don't share proprietary trade secrets or information about how their company succeeds (internal processes) with their new employer, information and data that that company invested heavily in being given away for free or as leverage for new employment, for employees like CEOs, salespeople, R&D engineers, etc.
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Don’t do either…sue them! Hire back good caregiver privately & the agency can go “expletive” themselves! You have more aggravation & stress from agency than anything else! Have your lawyer (or else yourself) tell Mr. Bully Lawyer that you don’t have $15,000. & to GTH…However, I know how much you love the Aide, but is she worth $15,000? If you paid private, maybe that’s what she’d cost for the entire year in total…can you train someone else to do same? Your husband doesn’t seem to be difficult to take care of, such as dementia, so it won’t be hard to find another Aide.
Hugs 🤗
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Sankay Feb 2022
Thank you. My husband does have later stage dementia but is still good physically. it is not a matter of training. Our care giver's personality is perfect for my husband. They laugh, tease, exercise and enjoy music together. She brings out the best that he has left! Many care givers are okay, some good but she stays engaged with him for the 3 hours she is there and longer some days. As I have said before, she brings joy back into our days....that is priceless. But, I sure do not want to give the other company another penny let alone 15000$. This is all such a nightmare. They did not invest in her training, she is a CNA and may be the only one they still had working for them. She was with them less than 90 days. I have never payed her privately as I was accused of doing but did follow her to another company that assigned her to us...that is my crime.
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Sankay: I did see that you've heard from your attorney one hour ago. Best of luck.
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California, north Dakota, and Oklahoma won't enforce incomplete clauses they still show up in their contracts other places Illinois and Massachusetts in 2008 have taken action to ban or reform clauses at the federal level. Hawaii, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Vermont, Washington and new York are all working on reforming via legislation.
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AlvaDeer Feb 2022
Thank you for this.
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I was with an agency that put the same stipulation in my mom’s contract. If we left their agency, we couldn’t hire their CNAs nor could their CNAs work specifically for my mom under another agency. They did mention that I could pay a “finder’s fee” or “head hunter’s fee” in exchange for hiring their employee under a different agency. This alleviates the money and training that they invested in the aide. Unfortunately, the cost was thousands of dollars. If I tried to fool them, they would come after me with a lawsuit. I cut the CNA loose, as it wasn’t worth the headache. Paying under the table is an option but dangerous. When aides are being paid cash and not into their social security, they lose in years to come when they draw their own pension. It is a double edged sword.
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Got Twitter? Post a non-slanderous tweet like “be sure to read the fine print” or “make sure your lawyer reviews the agreement before you sign” or “hired dad’s caregiver from them, she quit & they want a $15,000 commission if dad hires her at her new agency.”

See how they react to negative comments on their Twitter feed. Yes, it’s trolling them, but if it’s not slander or you add a caveat “in my opinion,” they don’t have recourse (except to block you?). You might see other tweets and chime in “we had same problem.”
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Perhaps there is confusion with original company thinking you hired her privately. Unless you hired/contracted for a specific period of time with orig company, you can terminate services with them at any time (especially based on being unreliable) and go with another company - which is what I understand that you did.

Tell atty who sent you the letter that she is not private employee for you. You went with a more reliable agency where she happens to work now. Their employee, not yours. If he tries to bluff you, just call your own atty and ask them to write a letter on your behalf.
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Sankay Feb 2022
I did get a lawyer for a flat fee of $675. He sent a letter yesterday to their lawyer requesting more time to do his research. I talked to him today as it dawned on me if this doesn't go well, I could be out the $675 and owe the $15,000. Or my lawyer will give me advice and I will either proceed with paying him more or paying what the court decides....I really want to keep this care giver and I have not ever paid her directly. I know letting her go is the simplest but!
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Reminds me of when I was a temp (not in care industry), and I came across a permanent opportunity at one of the firms I was temping in. Fast forward to contract signing, I tried to negotiate a higher salary and the firm told me that they already have to fork out 15k just to have me and that is factored into the hiring budget. I offered to resign from temping agency and apply externally but they said the temp agency actually sneakily checks on that as it’s very common and then they’d be in breach. I accepted to start on a lower salary with a salary review the next financial year. These kind of clauses are a funny thing. Hopefully you can find a way out of it and keep the carer that suits! I’m sure it would make a world of difference!
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Get a lawyer to go over the contract and advise you.
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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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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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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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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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We had a clause in our contract with Dads CG company that told us we would have to pay 10,000 if we Privately hired one of thier employees. That is in fact the ONLY reason we did not hire his wonderful CG privately. Of course we had no idea at the time we would just love her to death and WANT to hire her privately. The first CG was not so great, so who knew! She was with Dad until he passed, and as she was still with the company we would have rehired her from them for Mom if she had needed care. Funny twist, she ended up helping with FIL when BIL hired the same company! BUT if you never signed the contract, and she did not either you may get lucky!
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Sankay Feb 2022
You were very fortunate. When finding just the right care giver it is to everyone's advantage to make it possible for the client and care giver to stay together.
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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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Thanks, Alva. It was an e contract and I had to request a copy from the lawyer as I don't think I was ever given a copy as it is not in my files! What do you think of me reporting this to BBB so future clients and care givers will be aware of what they are signing! This company is going to extremes over losing income over 15 hrs per week and my husband is the one it punishes not the care giver who they are so upset with since she couldn't tolerate working for them any longer and gave her 2 wk notice. I had interviewed with the new company before I even knew the caregiver because I was fed up the company not following through with promises.
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AlvaDeer Feb 2022
I think the BBB is truly all about business and could care less about the little guy. I think Geaton above caught it right. See an employment labor lawyer. They will have the facts right there.
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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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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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