Employees Signing Contracts- Advice for Small Business Owners

by Viktoriya Badoeva and Michele Cea

A recent court decision from New York-Utopia Home Care Inc. v. Revival Home Care Inc. highlights what happens when an employee signs on a company’s behalf without authority to do so.

In this case, Revival Home Care claimed that Utopia Home Care had failed to timely submit its invoices for the services rendered to Revival Home Care, and therefore was not entitleddocument-agreement-documents-sign-48148 to payment for such services.

In support of its argument, Revival Home Care referred to the amended contract between Revival Home Care and Utopia Home Care, which stated that if the invoices were not submitted within 30 days after Utopia had rendered the services, Utopia would not get paid.

Unfortunately for Revival, the employee who had signed this amended contract had not been authorized to sign binding agreements on behalf of the company.

Lessons learnt from Utopia. Contract Advice for Small Business Owners

When running a small business, owners should expressly communicate to employees who is authorized to sign contracts. Likewise, business owners should communicate to third-parties dealing with the company, information on who is authorized to sign all legal contracts on behalf of the company.

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In Utopia Home Care Inc. v. Revival Home Care Inc., Utopia won the case. Nevertheless  it was still a wake-up call for the small business to pay closer attention to who signs its legal contracts.

Communication in any company or any relationship should be clear, especially in legal matters. Management or any authority should always double-check signatures and invoices.

An employee who assumes they have authority can get you in trouble with the law and create confusion between the business and a third party company. It should always be clear who has the authority within the company to make binding agreements.

A great way to avoid the courtroom is to create  an oversight process to make sure authorizations of the contracts are correct. This will help keep track of any binding contracts as well as invoice due dates.

About Cea Badoeva Law
Cea Badoeva Law Firm counsels business owners and entrepreneurs on a broad range of transactional and business matters including: Business start-up, Corporate formation and organization, Corporate governance, Contracts and commercial transactions, Business immigration.

 

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Employees Signing Contracts- Advice for Small Business Owners

Getting a Green Card as a Coach

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by Viktoriya Badoeva

 

A recent case of the Administrative Appeals Office (AAO) may change the way visas in the USA are approved for professional athletes. The case recognized the existence of a relationship between competing and coaching or training.

Essentially, the new case opens the path for professional athletes at the end of their careers to obtain US visas as coaches, trainers and managers under a limited set of circumstances.

To qualify for the extraordinary talent category of the EB-1 visa in the field of sports, athletes or coaches must:

1) Provide extensive documentation that shows extraordinary ability in the field (by satisfying at least three out of 10 criteria offered by the US immigration authorities);

2) Demonstrate a level of expertise indicating that they are “one of that small percentage who have risen to the very top of the field of endeavor”;

3) Demonstrate achievements that have been nationally or internationally recognized in their field, and most importantly that these achievements have been sustained through the date of filing the EB-1 petition; and

4) Show that they will continue working in the area of their extraordinary ability while in the US and that it will substantially benefit the country.

 

Securing EB-1 as a Coach or Trainer

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It’s difficult to prove that athletes who used to be extremely talented in sports while competing, may be equally talented as a coach or manager when they have retired from competing, and have not yet developed a stellar track record as coaches.

Here are a few tips to keep in mind when applying for the EB-1 visa as an athlete or a coach:

  1. Create an exact job title

It’s important to control the narrative by choosing the right position title to put on your documents. The best job title would be one that falls within the field of expertise you are best known for and still doing.

  1. Show sustained ability

Once the proper job title is chosen, it is crucial to show continued success in this area. In many cases, people have been declined because their award as an athlete dated 10 to 15 years before filing the petition.

In addition, if you are transitioning or only “recently” have transitioned to the coach, and want to piggy-back on your former athletic achievements, these achievements must be “recent.” While the immigration authorities do not define, what is “recent”, it may be prudent to say that if your last achievement as an athlete was 10 years ago, the chances that these achievements will be considered and given weight are extremely slim.

In addition, the longer the period of time you spent coaching, the less your athletic achievements will be considered. In this event weight will be primarily given to what you have achieved for the years you have been coaching.

  1. Demonstrate continuous work in the field

Even if you have met the “extraordinary ability” standard in an athletic field, it’s necessary to prove that you are going to continue working in this area while you are in the US. For example, a retired hockey athlete was denied because he is no longer playing or working in that specified field.

Many sections of the EB-1 regulation are still vague and not completely defined, but remember, each case is different. If you have questions on how to obtain an EB-1 visa in the area of sports, feel free to reach out to us. Since all cases are different, we may be able to increase your chances for a green card under this new ruling.

Getting a Green Card as a Coach

The O-1 “Artist” Visa

america-1298036_1280The number of artists in the United States is significant. “Artists” as it is defined for immigration purposes at least. In fact, one of the most common visas is the O-1, also known as the Artist Visa. To be more precise, the O-1 visa is not reserved exclusively for artists, but for all those who can show extraordinary ability in certain fields, such as the arts.

The O-1 visa is destined for people who can demonstrate the following: 1) extraordinary ability in science, education, business, and athletics; or 2) extraordinary ability in the arts. This category is not limited to fine arts, performing arts and visual arts but includes any field of creative activity or endeavor. Photographers, designers, architects, writers and even hairdressers and chefs are all considered artists for immigration purposes and can qualify for an O-1 visa; or 3) extraordinary achievement in the motion picture or TV industries.

The difference among the three categories lies in the standard of proof. The most challenging cases are those for people with extraordinary ability in science, education, business, and athletics because they are reserved only for those who have risen to the very top of their field of endeavor, representing a very small percentage. A less stringent standard of proof is applied to those who try to make a case of extraordinary achievement in the motion picture or TV industries, where it is required that the O-1 visa beneficiary be outstanding, suggesting the beneficiary be well-known and exceptional. Finally, the category for people with extraordinary ability in the arts is the easiest to prove because a level of distinction is sufficient. To show distinction, beneficiaries need to present documentary evidence of their extraordinary ability in a specific field. To sum up, the art category is the broadest and the easiest to prove. As a result, it can be concluded that the United States, at least for immigration purposes, is an artist-friendly country.

There are further differences among the categories in the proof that needs to be presented to the United States Citizenship and Immigration Services (USCIS). More specifically, the first category, which is comprised of people with extraordinary ability in science, education, business, and athletics and grouped under the O-1A caption, is different from the other two (extraordinary ability in the arts and extraordinary achievement in the motion picture or TV industries), grouped under the O-1B caption.

To obtain an O-1A visa, the beneficiary is required to demonstrate that he or she has risen to the very top of his or her field by:

Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

On the other hand, to obtain an O-1B visa, the beneficiary will have to show:

Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

It is worth noting again that there are two subcategories with different standards of proof within the O-1B: more stringent for people in the motion and television industries (outstanding) and easier to prove for those in the arts (distinction).

With regards to the proof needed, an O-1 case needs to demonstrate and provide evidence through publications, awards, and recommendation letters. Obviously, there are clear-cut cases that are easier to prove, but others that need to be “built” with a team-work between the beneficiary and a specialized lawyer.

In an O-1 Application, the Petitioner needs to be either a US employer or a US Agent. The first needs to be a person or a business that will exclusively employ the beneficiary. An employment contract or, at least, a summary of the terms of the oral agreement can provide sufficient evidence to demonstrate the employer/employee relationship. On the other hand, a US Agent can be in the relevant field and business as an agent and can file the petition without committing to exclusively employing the beneficiary. In these cases, it will be required to provide an itinerary of planned or proposed events.

The O-1 visa can be granted for the duration of the beneficiary’s participation in the event, up to three years, which can be extended for 1 year if the event is extended. That is, unless… the O-1 visa holder satisfies the requirements to become a US permanent resident prior. The O-1 visa indeed provides an opportunity to lead to highly sought-after and coveted “Green Card.”

The O-1 “Artist” Visa

Restrictive Covenants

 

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So you have been offered a job…What’s Next? Understanding Your Employment Agreement.

Covenant Not-to-Compete

The joyful moment of getting a job offer is often followed by a somewhat awkward stage for the prospective employees – negotiation of the proposed employment agreement. Yes, that’s right! The employment agreement that your employer will provide you, will be undoubtedly one-sided, and favoring your employer. You should not be afraid to ask questions, and negotiate on your behalf.

However, to negotiate a better deal for yourself, you need to fully understand the terms of your employment agreement. Unfortunately, many prospective employees do not look past the compensation section of their employment agreements, which albeit extremely important, is not the only part of the contract deserving close scrutiny. In this article, we are going to discuss another very important section of the employment contract — a section dealing with the covenant not to compete (or noncompetition clause). The non-competition provisions will actually affect your life after the termination of your employment. So if you think, that the worst case scenario is that you will just switch jobs, if something goes wrong, think again.

Covenant not to compete is a type of post-termination restrictive covenants that employers often include in their form employment contracts (along with the covenant not-to-solicit clients, employees, suppliers, sources of referral, etc.) to prevent a former employee from competing with the employer either directly (e.g., setting up a competing business “across the street”) or through a subsequent employment by a competitor. As a general rule New York law does not prohibit former employees from competing with a former employer, unless otherwise agreed to between the employer and the employee. For this reason, more and more employers currently include the non-competition provisions in their employment agreements.

A noncompetition clause is an agreement between an employer and an employee limiting an employee’s competitive activities for a specified period of time after the employment relationship ends. To be enforceable in New York, however, the covenant should be “reasonable” in that the restrictions must be necessary to protect a former employer’s legitimate interest (i.e., to prevent unfair competition), and the restrictions are reasonable in duration, geographic scope and substance.

The question of reasonableness of the non-competition restrictions is very fact-specific. The seminal case on the issue of enforceability and reasonableness of non-compete clauses is BDO Seidman v. Hirshberg (1999). The New York Court of Appeals has noted that “a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.”

A different analysis is used with respect to learned professions. In BDO Seidman the Court of Appeals held that when it comes to non-competition agreements between professionals, a greater weight should be given to the interests of the employer in restricting competition within a confined geographical area. The rationale used by the court for such different analysis was that professionals were deemed to provide “unique or extraordinary” services. However, even in the context of professionals, unduly broad noncompetition agreements will not be enforced.

The New York State courts later expounded the test for reasonableness set forth in BDO Seidman, and explained that the first step is to determine whether there is a necessary and legitimate interest that the former employer seeks to protect. When there is no legitimate interest supporting a restrictive covenant in an employment agreement, the restriction will not be enforced regardless of whether the covenant is otherwise reasonable. Generally, legitimate interests of the former employer include the protection against misappropriation of trade secrets or confidential information and protection from competition by a former employee whose services are unique or extraordinary The services or skills of an employee are typically considered unique where, due to the special nature of employee’s relationship with his or her customers, there is a “substantial risk” that the employee could divert all or part of such customers’ business.

To give you some background context – in the past courts have acknowledged employer’s legitimate interest to prevent unfair competition, where the former employer supplied the former employee with substantial resources. For example, the courts have found legitimate interest, where the former employer provided financial and support services to an employee to develop customer relationships; where the former employer devoted a substantial amount of time and support to projects tailored directly to specific clients; and where the former employer substantially invested time and money in maintaining a support staff dedicated to aiding employee representatives in addressing the needs of clients.

To the contrary, where an employee’s skills are general in nature, or no special skills or training is needed for a job, then that former employee’s skills will generally not be considered unique or special (even if such employee is very experienced and effective at performing his duties).[1]

Moving on. Assuming there is a legitimate interest of a former employer, the courts will review whether the non-competition clause restrictions (e.g., territorial application, duration) are reasonable, and no greater than necessary to protect the employer’s legitimate business interest. Thus, for instance, with respect to the duration of the non-compete, the courts will assess whether the length of the non-compete is reasonable considering the totality of the circumstances, or alternatively will look to the point at which the knowledge possessed by a former employee may no longer be relevant. Generally, assuming the remainder of the covenant is enforceable, a time limitation of up to and including one year has been regarded by courts as reasonable. Under certain circumstances even covenants up to five years have been enforced. Thus, there is no bright line rule for the maximum “reasonable” length of a restrictive covenant.

As for the geographic scope of the non-compete, such covenant is likely to be enforced if the restricted area coincides with the former employer’s location, or the location where the former employer primarily provided services, or the location where the main clients and customers of the former employer are located.

The above shows that when it comes to litigating non-competes, the facts of each case will be decisive of the outcome, and the likelihood of predicting the outcome is very low. Therefore, from the prospective of both employers and employees it is better to negotiate a “fair” and acceptable deal from the outset of the employment relationship. However, employers often use this uncertainty — along with certain scare tactics — to try to stretch the limits of the reasonableness of the restrictions. Particularly, employers would include unenforceable or otherwise problematic language in the restrictive covenant section of the employment agreement, in hope to scare off the employees and their potential future employers, when faced with a threat of long-lasting, time-consuming and expensive litigation. The assumption here is that even if you are ready to fight “tooth and nail” to prove your non-competition unenforceable, your new prospective employer may not wish to be dragged into a potential litigation, or to wait until you win your battle in court.[2]

The employers, however, also should not be overly relying on these scare tactics, because if the former employee actually does end up in court litigating the former employer’s overly broad non-compete, the former employer risks not getting any protection at all (as opposed to more limited protection, had the covenant been drafted in a more reasonable fashion). Even the existence of the so-called “blue-pencil” provisions (allowing the courts to basically strike the unenforceable provisions, and in some cases re-write the remaining provisions to make them enforceable as a whole) may not necessarily prevent the court from striking the entire non-competition clause. The case on point here is a relatively recent appellate decision in Brown & Brown Inc. v. Johnson, 980 N.Y.S.2d 631 (4th Dep’t 2014).[3] In this case a former employer, Brown & Brown, Inc., sued its former employee, Theresa Johnson, and her new employer (Brown’s competitor) for violating the restrictive covenant provisions (non-solicitation of customers) of Ms. Johnson’s employment agreement with Brown. In finding that the restrictive covenant language was overbroad and unenforceable, the court not only refused to apply the choice of law provisions in the employment agreement – stating that the Florida law with respect to the restrictive covenant was “truly obnoxious” to New York public policy – but also refused to “blue pencil” the covenant to limit the scope of its application. The court noted that Brown presented the employment agreement to Johnson more than seven years after the BDO Seidman decision, which “served as notice to plaintiff that the agreement at issue here was also overly broad.” Although the agreement provided for partial enforcement if a court found the covenants overly restrictive, the court concluded that provision demonstrated that Brown imposed the covenant in bad faith, knowing that it was overbroad.

The information contained in this article only partially covers the complexity of the restrictive covenants in general, and covenants not to compete in particular. In practice, there is a lot more to it than just determining the reasonableness of the covenant. Questions have been raised regarding transferability of the non-competes (e.g., upon the change of control of the former employer), enforceability of non-competes if the employee was terminated by the employer without cause, etc. Both employers and employees should pay close attention to the restrictive covenants language in their employment contracts, understand the potential issues with enforcing such covenants, and the practical consequences of non-compliance with such post-termination employee obligations.

Viktoriya Badoeva, Esq.    vbadoeva@cebalaw.com

 


[1] However, one should be cautious when considering the “unique and extraordinary” requirement for the services provided. Do not assume that it only applies to members of “learned professions,” i.e., those professions that require extensive training and education. See, for instance, Ticor v. Cohen, holding that the services of a sales person, under the appropriate circumstances, can be deemed unique.
[2] Now please remember that, in the event you lose, the time you spent in court fighting the non-compete would not count towards the duration of such non-compete, meaning that the period of your non-compete restrictions will start running from the beginning as of the moment of judgment against you. Likewise, you would not be able to compete with the employer during the pendency of your litigation, because you most likely would be enjoined from such competition by a court order upon the motion of your former employer.
[3] In Brown, the Court was tasked with reviewing the non-solicitation of customers clause of the employment agreement. However, the analysis would be similar for purposes of determining the reasonableness of the non-competition clause.
Restrictive Covenants

The H-1B Visa Season

Photograph of a U.S. Department of Homeland Security logo.

April 1st. This is the date booked on many agendas of foreigners living in the US. The reason is not a playful ‘April Fools’, as foreigners living in the US (and especially in New York) do not have a lot of time left for joking around. Every year, on April 1st, the United States Citizenship and Immigration Services (USCIS) starts accepting H-1B visa applications, which is the much coveted work visa (actually, there are also other visas that enable holders to work when specific criteria are met, but the H-1B is considered the most important work visa because it establishes a traditional employer/employee professional relationship).

After receiving an H-1B application, USCIS takes some time (typically a few weeks but it could even take more than a month) to evaluate an application. Even after obtaining approval, the beneficiary cannot start working prior to October 1st. The H-1B visa lasts three years and can be extended for additional three years.

Is getting an H-1B easy?

Not really. It has never been easy, and it has become even more difficult nowadays. Here’s why. First of all, there is a cap on the number of H-1B visas made available every year by USCIS: 85,000. More precisely, the number is even smaller for many foreigners: 20,000 out of 85,000 H-1Bs are reserved for those with advanced degrees obtained in the US, while 65,000 are open to others. Are 85,000 visas per year sufficient to meet the needs of US employers? Absolutely not. In fact, in a growing economy, the applications received by USCIS far exceed the number of available visas. For instance, in 2015, USCIS received in excess of 230,000 applications in the first week of April alone, three times more than the number of visas available.

To deal with such an excess demand, USCIS resorts to a computerized draft lottery that automatically decides which applications deserve to be evaluated (not approved), while the non-drafted ones are sent back without any consideration. In other words, in 2015, almost 150,000 candidates were left without a remedy, despite the fact that a US employer had offered each of them a position. That’s not cool! The job market is still very strong this first part of 2016. More than 200,000 applications are expected this year as well. There is no doubt that there will be a new lottery for the lucky. In Washington, there have been discussions by the Politicians to raise the cap. In fact, similar provisions were included in the immigration bill that was blocked in Congress a few years ago. The fact is, in the election year, politicians would rather not deal with a reform that may be construed by populists as anti-American. Perhaps only Frank Underwood could break the deadlock…

And what do the drafted applicants get? Very little. The simple right to have the application evaluated. In fact, USCIS will only approve an H-1B application when specific criteria are met:

1 – An employer/employee relationship must be in place. An independent contractor relationship is not sufficient. USCIS will verify whether the employer retains control over the employee’s activities and whether the employee is incorporated in the employer’s organization for tax purposes.

2 – The beneficiary needs to be employed in the specialty occupation consistent with her or his educational and professional background. In other words, USCIS opens the door only to skilled foreigners. Having a degree in the field of the offered position usually satisfies this requirement. Those who do not possess a degree could also qualify, however, USCIS has more stringent requirements in such cases: a professional license or a lengthy previous work experience in the field (three years of work experience is considered to be equivalent to one academic year) will deem an applicant eligible.

3 – The wages offered by the employer to the applicant must be at least average wages offered for similar jobs in the US. USCIS utilizes the data from the Department of Labor to assess this crucial requirement, which eliminates ‘frivolous’ applications, thus rendering the H-1B work visa a benefit reserved for most skilled foreigners.

In summary, the H-1B work visa is arguably one of the most desirable visas since it allows holders to work without any significant restrictions – as is the case with other visas – and offers the ability to easily change employers. On the other hand, as we have discussed, the H-1B visa is not easily obtainable. It is a visa reserved for those who are highly skilled with an added twist – they must also be lucky!

 

Michele Cea, Esq.         mcea@cebalaw.com

 

The H-1B Visa Season