About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents
 
advertisement


Subscriptions
Sponsored By

Software Reviews
Continuing Series
     RTN
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By


Product Reviews
Partner Sites

machinecontrolonline 


lbszone.com

GISuser.com

GeoJobs.biz

GeoLearn

 

Spatial Media LLC properties

Associates

ASPRS

newsnow 

Home arrow Archives   The American Surveyor     

Vantage Point: Letting Go Print E-mail
Written by Wendy Lathrop, PS, CFM   
Sunday, 13 April 2014

A 67Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

It's an inevitable cycle of the business world: people are hired; people leave (voluntarily or involuntarily). Only the terms of engagement and disengagement vary from one firm to another.

Recently more companies are requiring new employees to sign what amounts to an oath of allegiance. Thou shalt not share trade secrets. Thou shalt not work for a competitor in the same line of business or in the same region for so many years. Thou shalt not lure clients away from your present employer either to your own new company or to your future employer.

Conditions in an employment agreement are sometimes reasonable and sometimes not. Sometimes they should not be applied uniformly to every employee. And perhaps there should be some two-way responsibility between employer and employee so that both parties are responsible to each other. The case of Fenner Precision, Inc. v. Mearthane Products Corp. (US District Court for the Western District of NY, February 2013) illustrates how an employment agreement can work - or not, depending upon your hoped-for outcome.

Phillip Garrod had worked exclusively as a salesman for elastomeric precision products (EPP, products made of elastomers that stretch and return to their original shape) since 1983. Winfield Industries, a manufacturer of EPP, hired him in 2000 primarily because of his established sales relationship with a particular purchaser, and Garrod built a good relationship with that client and his new employer. His employment with Winfield subjected Garrod to a non-compete agreement with several restrictive clauses.

Fenner Precision, Inc. bought out Winfield and hired its entire staff in 2008, requiring everyone to sign various documents regarding their transfer of employment. Garrod was told he had to sign the new non-compete agreement but wasn't told specifically that it was a condition of his employment to do so. This document contained three restrictive covenants: a confidentiality provision (primarily regarding trade secrets of product manufacture); a non-compete provision (prohibiting Garrod from providing his services to a competitor within a year of leaving Fenner); and a non-solicitation provision (prohibiting solicitation of "current, past or prospective customers".)

After three years, Fenner changed Garrod's title (a demotion), hired a new sales employee, and then required Garrod to teach this new employee his former job. Five months later, Fenner terminated Garrod without saying why, offering him a severance package in exchange for signing another agreement extending the restrictive covenants of his employment agreement for a period of one year. At age 58, Garrod refused to sign the form that would prohibit him from working in any business relating to the manufacture or sale of competing production, contacting or soliciting any current past or present customers, and disclosing any proprietary company information. Essentially this severance agreement would have prevented him from working in the EPP industry as he had for his entire career and make it nearly impossible to find a job outside of this business.

After being terminated, Garrod sent out about sixty resumes for "general sales positions" (outside his EPP field), the only responses being four rejections. Then he sent out eight resumes to EPP companies, had three interviews, and accepted a position with Mearthane Products Corp., one of Fenner's competitors.

Fenner sued because Garrod was now selling to Fenner's shared clientele. But the customer base for EPP is very limited, and Garrod counterclaimed that he knew most of these companies even before he worked for Winfield, much less Fenner. Furthermore, at the time of Fenner's suit, he hadn't closed a single sale to any of Fenner's customers since starting work with Mearthane. The products that clients purchase, as well as the products that Fenner sells, are not secret. Pricing is not confidential, since clients often share with sales people what they currently pay in hopes of a better deal.

Was the non-solicitation clause violated? Did Garrod violate the non-compete clause? The court in this case did find that Garrod did cause "irreparable harm" to Fenner by applying the goodwill he had built up with his former employers to his new position. However, "Generally, our determination of reasonableness . . . has involved a weighing of competing interests-that of the employer's need for protection-against the hardship of the restriction to be imposed upon the employee." While the burden of proof is on the employee, "a restrictive covenant found to be reasonable in one case may be unreasonable in others." Factors affecting this determination of reasonableness "may include the reasons why the employee's employment ended, the employee's personal circumstances, the number of times the employee has previously agreed to such provisions, the potential harm to the employer, the size of the potential pool of customers and the business climate." Considering that Garrod had been fired (reason undisclosed), the court inferred that Fenner considered him worthless and this should be factored into determining enforceability of the restrictive covenants.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 67Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
< Prev   Next >

Marc Cheves, PS 
Editorial: A Great Year to be a Surveyor
Some magazines have what are called "theme" issues. That is, most of the content is focused on one particular subject. In my 22+ years of survey magazine publishing, my philosophy has always been to have a little bit of everything in each issue, thereby eliminating the possibility that ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Case Examinations: Halverson v. Deerwood Village
Whew! We really beat the snot out of Bryant v. Blevins and practical locations. Well this month we're back on new case that hit the Minnesota Supreme Court's docket in 1982. We've got the familiar gymnastics of jurisprudence featuring an extraordinary array of flying rope stretchers ...
Read the Article
Michel Philips 
Extreme Environment Surveying
A Franco-Chilean team of cave divers used the Nautiz X8 rugged handheld for marine cave surveying, gathering data to classify the inaccessible northern half of Madre de Dios for UNESCO World Heritage. The team of cave divers used the Nautiz X8 ....
Read the Article
Erik Dahlberg 
The Original Green Engineers
Sometimes, it's best just to leave things as you found them. That's the lesson shared by Dr. Richard Miksad and his students at the University of Virginia. As a result of studies covering nearly a decade, Miksad's teams have developed detailed ....
Read the Article
Dave Lindell, PS 
Test Yourself 49: No Dimensions
In square A-C-D-B with side S, C-E is tangent to the semicircle Q1 with diameter B-D. Q2 is the inscribed circle of A-C-E. The tangent to Q1 and Q2 meets the sides of the square at F and H and intersects C-E at t G. Q3 is the inscribed circle of C-G-H. What is the ratio of the radii of circles ....
Read the Article
Jerry Penry, PS 
Discovery on Grizzly Peak
When First Lieutenant Montgomery M. Macomb arrived in Carson City, Nevada, from Washington D.C., on July 28, 1878, his assigned survey crew from the 4th Artillery was waiting and ready for the new field season. At age 25, Macomb was the leader ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Fighting City Hall Over Land
Once upon a time (1989 to be exact) in a place not so far away from where I live, a man (Francis Galdo) bought a home across the street from a vacant parcel owned by the City of Philadelphia. That parcel, along with others, had been acquired by condemnation back in 1974 subsequent to a 1956 ....
Read the Article
Patrick C. Garner, PS 
Book Review: Boundary Retracement: Processes and Procedures
When I was in my mid-twenties and learning the honorable profession of land surveying, I was lucky to be guided by a mentor who would grab a book off his office shelf and say, "Every surveyor should have a copy of this!" The first example he waved at me was Davis, Foote and Kelly's Surveying ....
Read the Article

deliciousrssnewsletterlinkedinfacebooktwitter

Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
please
contact Amerisurv


Google
 
AMERISURV TOP NEWS

Trimble Intros
TSC7 Controller

GOT NEWS? Send To
press [at] amerisurv.com
Online Internet Content

Sponsor


News Feeds

 
Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps
Careers

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.

 

Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 

twitter

 




The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
7820B Wormans Mill Road, #236
Frederick MD 21701
301-620-0784
301-695-1538 - fax