Can I start my own company with independent contractors who work on my team at my current job?

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Can I start my own company with independent contractors who work on my team at my current job?

I am a manager at a resort photography business. I signed a contract when I was

offered the job that had a 2 year upon leaving the current company non compete and non-solicitation clause in it stating I wouldn’t compete with the company in the field of resort photography or solicit their contract photographers. I do not intend to work as a resort photographer. However, I would like to leave the company to begin my own photography collective that would include helping promote other independent contract photographers kind of like a photographer’s agent. We would focus on promoting each photographer for their own specialties and skills, and if I book work for them I would receive a percentage of the amount they make

from each job they book through my collective. Do I have to wait out the 2 year non-solicitation period after leaving the company? These photographers are not employees of the current company, so I don’t understand how they could prohibit them or me from working together legally? As stated above, we wouldn’t intend to offer any resort photography. We would offer other photo services such as wedding photography, marketing photography or adventure photography, etc.

Asked on October 1, 2018 under Business Law, Hawaii

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

They can prohibit you from working with their non-employee (i.e. contract) photographers because you apparently signed a contract with a non-solicitation clause barring you from "soliciting" their contract photographers--i.e. barring you from asking or inviting them to work with you. Such an agreement is valid and enforceable: people can contract away the right to do certain things. While you should double check exactly what that agreement says, since contracts are enforced according to their precise terms, if it says you can't work with them, you can't work with them.


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