DZO sues Tandem Instructor

[GeoffPark 0]

Consider carefully before going to work for Brian Erler at either of his two dropzones (Long Island Skydiving Center, and Skydive South Shore).
I was a TI at LISC from April 2006 until September 2014. At the start of the 2014 season he added a “non-compete” clause to his Independent Contractor Agreement, which prohibits you from working within a 50-mile radius of his DZs for 2 years. In other words, if you go work for him, you can’t work at either Skydive Long Island in Calverton, or 516-SKYDIVE at Lufker’s.
At the beginning of this year’s season I went to work at 516-SKYDIVE. My reasons for staying in the area include wanting to support my girlfriend, who’s getting chemotherapy for breast cancer. Brian Erler sued me for breach of contract and got a court order preventing me from working on Long Island.
It is estimated that Brian Erler makes well in excess of $300,000 a year from his two dropzones. In 2014 I made $34,715. My working at another DZ does nothing to harm his business. I believe he was just being vindictive and trying to harm his competition.
So, if you want to work on Long Island next summer, think about your options.

[normiss 749]

Subcontractor?

[baronn 111]

What's with these Cocksuckers? I have often said prisoners have more freedoms than DZ employees. This proves it once again. Any DZO that has an ad for help year after year, is a big red flag, LISC has an ad every year. Often mid season......

[justme12001 0]

Did you sign the contract? I am assuming you did. I would speak to a lawyer if you haven't already.

I have been asked to sign one, and I refused.

I really don't understand why a DZO thinks he/she has the right to force someone to sign one of these no compete contracts, if they are treating you like a contractor and not an employee.

Here is a thread I started about the subject awhile back.
http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=4609057;search_string=DZ%20with%20contracts;#4609057

[GeoffPark 0]

Yup, I signed it. Had no option at the time, as he sprung it on me after I had got into debt traveling 2,600 miles to get back there. He also cut the pay per jump by a couple of bucks, claiming hardship. He was a decent enough guy to work for when I first went there, but over the last few years...

[GeoffPark 0]

Yup. He makes all his subcontractors - TIs, pilots, packers - sign the "non-compete" thing. As if we're in competition with him if we work somewhere else??? Now, if I opened my own DZ, it would be a different matter...but I'm not.
I just want to get the word out about what has happened with me, so that other folks can make an informed decision about whether or not they want to work for Brian Erler.

[Unstable 9]

Quote

Yup. He makes all his subcontractors - TIs, pilots, packers - sign the "non-compete" thing. As if we're in competition with him if we work somewhere else??? Now, if I opened my own DZ, it would be a different matter...but I'm not.
I just want to get the word out about what has happened with me, so that other folks can make an informed decision about whether or not they want to work for Brian Erler.

So how does that work if you are a rigger in the area and pack at his DZ? Is he trying to take a cut of that too?

=========Shaun ==========

[DougH 270]

My non legal opinion is that the non compete is unenforceable, but you still have to spend the time and money to defend it so he doesn't get a judgement against you if your a no show.

Fuck him, fight fire with fire.

Call the state labor board, and other various parties, and inform them that this guy is misrepresenting employees as independent contractors.

"The restraining order says you're only allowed to touch me in freefall"
=P

[Halfpastniner 0]

I agree about talking to a lawyer. It just doesn't sound legal to make a sub-contractor sign a non-compete. Doesn't that go against the whole point of contractors? Imagine if an electrician was hired to wire a building and the General contractor demanded he never work for another contractor in town. That would never fly in a million years and shouldn't here either.

BASE 1384

[irishrigger 32]

i was asked to sign a contract like that in another country and i refused and said i would just walk away, they took the clause out, i am not a legal qualified person but i would have thought it be illegal for anyone to restrict you from working. i have a feeling that you could fight this but would it be worth the expense?
surprised to hear that a court has already decided that you cannot work and already preventing you from doing so.
i sincerely hope you get this sorted out and in the mean time all the very best to your partner and i hope they make a full recovery.

[GeoffPark 0]

Thank you (& give my best to all at Clonbollogue)
Unfortunately, it's all done. The non-compete clause IS enforceable here because New York has "at will" employment laws. Erler got a hit squad of lawyers to fast-track it through the Suffolk County Supreme Court. Personally, I think the money he spent doing so would have been better used at a therapist's
And for the future, I will NEVER again sign away my right to work anywhere I choose

[GeoffPark 0]

Exactly
But he got away with it
It's wrong, but legal (see above reply)

[normiss 749]

You were an employee then, not an independent contractor?

[GeoffPark 0]

No, independent contractor

[jbscout2002 1]

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

See if there is anything by way of this route to use against him. Fight fire with fire.

[RMK 3]

Non-competes were meant as a tool to protect proprietary knowledge/information/processes. It angers me to see these used in the US for roles such as sandwich shops, summer camps and now DZs.

Here’s a link worth reading re employee vs contractor non-competes:

http://www.mondaq.com/unitedstates/x/246534/employee+rights+labour+relations/No+No+No+Your+Independent+Contractor+Cannot+Sign+A+Noncompete+Never+Ever

Excepting the Sheikh who owns Skydive Dubai, there is no wealthy DZO with team of powerful lawyers; don’t be intimidated. He seems to be taking advantage of people he knows are not in a position to pay 10-20K in legal costs fighting with him.

http://www.fastcompany.com/3031956/the-future-of-work/what-you-need-to-know-before-signing-a-noncompete-agreement

Following is some info on NY law on non-competes

http://www.schnader.com/files/Publication/5c8e030c-f56d-4ca5-8b99-64285517ae37/Presentation/PublicationAttachment/8e904049-326e-4b02-b721-6dd5df6c2dfe/Non%20compete%20laws%20in%20New%20York%20Q%20and%20A_February%202011.pdf

New York law disfavors non-compete agreements as an unreasonable restraint of trade (Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 307 (1976)).

Courts may enforce a non-compete if the restriction is reasonable. Although courts determine reasonableness on a case-by-case basis, a non-compete can be reasonable only if it:

- Is no greater than required to protect an employer’s legitimate protectable interests.
- Does not impose undue hardship on the employee.
- Does not cause injury to the public.
- reasonable in:
o duration; and
o geographic scope.

There is a global web forum for the hedge fund & private equity industry called Albourne Village https://village.albourne.com/village/ It is free to register and you can ask a query to the whole community at once. Create an anonymous login and pose the query in a general sense re New York law. Don’t say that you are a skydiver, just say you work in the “industry” – no one will ask or care. Present your query articulately and you’d be surprised at the number of people registered to that site which may provide a helpful reply.

"Pain is the best instructor, but no one wants to attend his classes"

[spencer 0]

Not a happy story

[jonstark 8]

There's no way it can stick but you'll lose by defult if you don't respond. As said before the only non-compete that is valid is for proprietary or very specialized jobs. You have the right to work at this menial task and his non-compete is bogus.

[GeoffPark 0]

Thanks for the links, and thanks to all for your support, but as I mentioned earlier, it's all over, and I cannot work on Long Island until September 2016.
I received a summons on 23 May; the judge handed down his decision 05 June; and the window of time (2 months) in which to make an appeal has closed.
I just wanted to bring the issue up here to let as many people as possible know about Brian Erler's morally questionable business practices.
Thanks again guys.

[fencebuster 7]

The emnployee/contractor distinction is important to this legal issue. If you were an employee, your employer should have paid social security taxes, medicare, unemployment insurance, etc. DZO might have opened a can of worms that he doesn't want slithering around, if you fight him, with all of the agencies that might be "interested," such as Social Security Administration, IRS, etc.

Charlie Gittins, 540-327-2208
AFF-I, Sigma TI, IAD-I
MEI, CFI-I, Senior Rigger
Former DZO, Blue Ridge Skydiving Adventures

[DougH 270]

So did he win on the merits, or did he win on your failure to appear and respond to the matter?

"The restraining order says you're only allowed to touch me in freefall"
=P

[yoink 321]

Iago

A main legal strategy is to simply stall proceedings as long as possible so the weaker party (i.e. less money) has to either drop their case or settle at a pittance.

And as a massive generalization, between a DZO and a tandem instructor who do you think probably has the deeper pockets?

[skydiveoc 0]

OK Ill play devil's advocate here.

I have 2 close DZO friends who have had 2 TI's open up competing businesses at the same airport after working for them for several years.

These individuals were successful also in luring away other staff and using the successful business model the original DZO had created.

The DZO community is small and when stories like these surface, operators take measures to protect what they've invested and how they provide for their families.

[peek 21]

skydiveoc

These individuals were successful also in luring away other staff and using the successful business model the original DZO had created.

How did they do that? What did their new DZ offer that the old one did not. If a DZ is a pleasant place, it is a lot easier to stay put.

[fcajump 164]

peek

***These individuals were successful also in luring away other staff and using the successful business model the original DZO had created.

How did they do that? What did their new DZ offer that the old one did not. If a DZ is a pleasant place, it is a lot easier to stay put.

And if that business model is one that eliminates the sport/fun jumpers for the sake of profit and slightly higher wages or other perks, what does that do (what is that doing) to our industry as a whole?

If we want to survive for the long run, we need to stop supporting, working with/for tandem mills that scrape the cream off the top. If we fail to support the DZ's that provide complete instruction and balances tandems with sport, we will loose it all to the one-n-done passenger/carnival riders.

JW



JW

JW

Always remember that some clouds are harder than others...