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phone calls to dealerships and manufacturers for replacement
parts and new equipment, calling prospective customers with
respect to sales, and contacting customers regarding their
maintenance needs. This work was done from petitioner’s home
because Empire did not have adequate office space from which
petitioner could work. Petitioner had no set hours, no
supervision, and underwent no training during his time with
Empire.
The record contains an employment agreement (agreement)
between petitioner and Empire that was never formally executed.
The agreement, however, generally set forth the intentions of
petitioner and Empire as to the nature of petitioner’s work.
Under the agreement petitioner was to receive a salary of $32,500
per annum, was to be reimbursed for all incidental business
expenses, and was subject to dismissal without cause upon a 90-
day written notice. There was also a trade secrets clause and a
covenant not to compete. The covenant would prevent petitioner
from owning, operating, or otherwise working for a competitor of
Empire while providing services to Empire and for a period of 1
year after his separation from service with Empire. This
covenant was limited to a six-county region of New York,
presumably the regions in which Empire operated. The covenant
did not include the region petitioner maintained while providing
services to Troy.
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Last modified: May 25, 2011