Indy contractor non solicitation question

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I currently work for a very large IT contracting/consulting company as a W2 full-time employee. I am at a client site now (client ABC). I signed a non-compete (12 months) upon hire stating the following:
handbook said: You shall not....

.....solicit or accept employment as an employee or independent contractor, with any customers of the Company for whom I was assigned responsibility to support Company's engagement at any time during the term of my employment with the Company.


I have been offered a new position by a competitor consulting/contracting firm. I will be a full-time W2 employee of the competitor. Competitor does occasional contracting work at the client I'm currently at (client ABC) with my current consulting firm. Am I considered an "independent contractor" even though I would be working for a new consulting company, who happens to share the same client as my current company if the competitor chooses to place me on client ABC's account?

When Googling, I am finding mixed results. IRS website seems to differentiate between contractor and employee, but not between employee OF a contracting company and employee. 

I realize this is not really finance related, but I know a lot of people here have experience in this sort of thing and I would appreciate some opinions. Thanks.

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If I were to take a job with competitor Z because client ABC wanted to rent me from them, then my employment with Z might look like a sham to evade the contract with original employer X.

If I left my employment with X to work for Z, and Z later sent me to work for ABC for a couple of weeks, I wouldn't think I'd violated my non-compete.

But none of the above should be taken to mean I know what I'm talking about.

You shall not....

.....solicit or accept employment as an employee or independent contractor, with any customers of the Company for whom I was assigned responsibility to support Company's engagement at any time during the term of my employment with the Company.

The non-compete is only during the term of your employment with them.  If you left the company then it no longer applies.  At least that the way I read it.

You're finding mixed results because this has nothing to do with the IRS. It has to do with labor law, and the laws in your particular jurisdiction.

Before I took the job, I would
1. make plainly clear to the hiring agency the non-complete contract
2. make plainly clear to the hiring agency that if hired, you can not perform any work on behalf of any of ABCs current clients for a period of 1 year.
3. Talk to a laywer.

I don't have experience in this sort of thing either. I'm 50 and still working my first grown-up job.

taxmantoo said:   If I were to take a job with competitor Z because client ABC wanted to rent me from them, then my employment with Z might look like a sham to evade the contract with original employer X.

If I left my employment with X to work for Z, and Z later sent me to work for ABC for a couple of weeks, I wouldn't think I'd violated my non-compete.

But none of the above should be taken to mean I know what I'm talking about.

  I forgot to mention (doesn't that always happen?) that competitor aka "new co" would send me to a different client for at least six months as a "curing period" to alleviate any revolving door kind of behavior. We don't want to piss off the client or cause any ripples there. Not to mention, don't want to draw any unneeded attention from my current co.

ZenNUTS said:   
You shall not....

.....solicit or accept employment as an employee or independent contractor, with any customers of the Company for whom I was assigned responsibility to support Company's engagement at any time during the term of my employment with the Company.

The non-compete is only during the term of your employment with them.  If you left the company then it no longer applies.  At least that the way I read it.

  Apologies. That is just one clause under the non solicitation heading. The general paragraph proceeding the clause I originally quoted states "during the term of my employment by the Company, and for a period of twelve months thereafter, I shall not, directly or indirectly, without the prior written consent of the Company:" and then states the above clause along with another about not soliciting previous or current employees of the Company to work for me and/or quit current co.

micha8s said:   
2. make plainly clear to the hiring agency that if hired, you can not perform any work on behalf of any of ABCs current clients for a period of 1 year.

 

  But that is what I'm questioning. I realize I can't, as an independent contractor, but can I as an employee of another company who happens to contract with client ABC?

ETA: shit! my bad for the three replies. I ALWAYS do that. I'm too used to SD where they auto-merge replies.

jaytrader said:   Am I considered an "independent contractor" even though I would be working for a new consulting company, who happens to share the same client as my current company if the competitor chooses to place me on client ABC's account?
  
No, you're not an independent contractor and you wouldn't be violating your agreement. The purpose of the non-compete is to prevent you from cutting your current employer out of the profit by leaving them to work for the customer directly. In the scenario you've proposed, you're leaving for another job; the fact that they happen to share a client is irrelevant. As long as you're not directly competing with your current employer for the work (the potential employer is), you're fine.

The fact that the new company is putting you onto a different project first is by no means necessary, but it is helpful in demonstrating that this is a legitimate hire not designed solely to steal business from your current employer, reducing the chance of making your current employer angry.

 

jaytrader said:   IRS website seems to differentiate between contractor and employee, but not between employee OF a contracting company and employee.
 

  
Because there's no difference. You're incorrectly conflating labor regulation terminology with business-to-business contract terminology. You are an employee of Company A who happens to work on Company A's contract with Company B. In no way would you be considered an independent contractor.

Thanks dover. Are you a lawyer or something similar? Or is this expressly your opinion based on your interpretation? I'm with you 110%, and agree on your interpretation. I just was seeking other opinions, which may or may not lead me to consulting with a lawyer to be safe.

jaytrader said:   Thanks dover. Are you a lawyer or something similar? Or is this expressly your opinion based on your interpretation? I'm with you 110%, and agree on your interpretation. I just was seeking other opinions, which may or may not lead me to consulting with a lawyer to be safe.
  
Nope, I just play one on the internet. It's never a bad idea to consult with a lawyer, but my personal opinion is that it's unnecessary.

jaytrader said:   Thanks dover. Are you a lawyer or something similar? Or is this expressly your opinion based on your interpretation? I'm with you 110%, and agree on your interpretation. I just was seeking other opinions, which may or may not lead me to consulting with a lawyer to be safe.
  Just remember, your employer could still cause a lot of headaches for you, the client, and your new company, regardless of the prevailing interpretation.  Often, winning or losing gets dwarfed by the hassle of the process of getting to any conclusion.

I agree, by the way - you are accepting employment at a new company that isn't covered by the non-compete restriction.  The new company's customer/client roster is irrelevant.

Thanks, Peeps. Giving notice today.



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