Non – Competes are alive and well in Texas!

Read the label before consuming employment in the state of TEXAS! Recent Texas Supreme Court rulings may require new laws requiring hazardous employment to be conspicuously labeled!

Attorney General's Warning: Accepting this job may be hazardous to your career!

And you thought all you needed to work in Texas was a shingle to announce your profession and a shotgun to keep varmints off your land; well think again! In the beautiful and once free nation of Texas courts were hesitant to enforce non-compete agreements against employees and allowed them the constitutional right to the "pursuit of happiness." But what was once a safe haven promoting a free market and safe society has now become just another territory controlled by the Borg!(1)

Texas law has taken a paradigm shift relative to giving employers the edge they need to forcing you out of your chosen field and waiting in the unemployment line; in many cases for years! You were relatively safe in the cowboy nation until 1989 when the Texas legislature passed the "Covenants Not to Compete Act." From 1989 to 1994 the battle ensued. It was in 1994 that employers learned that the letter of the law must be followed to enforce such covenants (2) Texas was a place for families to come and enjoy good employment without the fear of becoming "un-employable" in what would be a communistic landscape.

In Three small sections of the Texas Business and Commerce Code one can find the basis for which your new and excited employer will later come back and haunt you like the plague of death. The 3 sections that deal with the "Covenants Not to Compete" are:

• 
  
  § 15.51 CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE
• 
  
  § 15.52 PROCEDURES AND REMEDIES IN ACTIONS TO ENFORCE COVENANTS NOT TO COMPETE
• 
  
  § 15.53 PREEMPTION OF OTHER LAW! (3)

These 869 words and a few assorted symbols are what lie between you and good employment in the future!What is important is that there are several components to an enforceable non-compete agreement they are: (4)

• State and Federal Jury Trials
• Be ancillary to or part of otherwise enforceable agreement at the time the agreement is made;
• Protect a legitimate business interest;
• Contain reasonable limitations as to the scope of activity to be restrained;
• Contain reasonable geographical limitations; and
• Contain reasonable durational limitations.

It appears that after the "Covenants Not to Compete Act" was legislated that it remained relatively unchanged. Section 15.52 was added later in 1993 but it has been a "well talked about urban legend" that you have the right to work in Texas and that non-competes didn't hold much H2O, certainly not quality H2O at that. I have had bosses tell me, "Oh don't worry about this it is just part of our protocol." Well Texas courts may not be crazy about enforcing non-competes but there have been some changes that give pretty sharp TEETH to these agreements and a lot has been written and blogged about since these changes.

Major Change #1 – The case of: Alex Sheshunoff Mgt. Servs., LP v. Johnson, 209 S.W.3d 644 (Tex. 2006). The court decided that the original interpretation of Light (5) was not complete. What once required "at the time the agreement was made" to merely requiring that the company performs sometime in the future.

"We now conclude, contrary to Light, that the covenant need only be "ancillary to or part of" the agreement at the time the agreement is made. Accordingly, a unilateral contract formed when the employer performs a promise that was illusory when made can satisfy the requirements of the Act." – Supreme Court of Texas

Major Change #2 – The case of: Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 52 Tex. Sup. J. 616 (Tex. April 17, 2009). The court broadened the use of the non-compete to cover not only a specific promise of consideration (confidential or proprietary information) but also an implied promise of consideration. Making it much easier to enforce a covenant of non-compete in Texas; thereby removing many of the hurdles that once stood in the way of your previous employer from denying you the right to pursue employment in your chosen field. And for many of us that means the career which we have dedicated the majority of our adult lives to.

So in short non-compete covenants must be 1) Ancillary and 2) Reasonable. Well as things have changed it is now becoming necessary for all good pirates of digital printing to have an attorney on retainer! It also appears that you shouldn't leave your career and enjoyable future up to just any attorney.

It seems prudent that only a Board Certified by the Texas Board of Legal specialization in Labor and Employment law will do now that the cat is out of the bag so to speak. Or in pirates terms the "parrot is out of the treasure chest."

I did a good amount of reading on the subject of non-compete covenants and found some notable resources and potential advisors. One blog that I ran into that seemed quite authoritative was: http://blog.texasnoncompetelaw.com/  by Robert Wood (6).

When I went to the Texas Board of Legal Specialization's website (7) I found roughly 576 listings of attorneys that are "Board Certified" in Texas to specialize in Labor and Employment. You can go to their website to see if an attorney you are considering is board certified to get you back to the road of paradise and put your "parrot back in the treasure chest."

So as you look for a "den of thieves" to call your own, please remember to always have a qualified attorney look at your employment documents before executing them! Or it may be you they are executing after the termination of your employment!

"Employees who are presented with a non-competition agreement should carefully consider the impact that the covenant may have upon their future employment in the event that the employment is later terminated.  …  Thus, any employee who is presented with a non-competition agreement would be well advised to have it carefully reviewed by an attorney prior to execution." – Betty Brown attorney at law http://www.brownemploymentlaw.com

I will say one thing; I like to consider myself "a valuable asset" to any organization that is involved with the printing and publishing industry. And I am sure that those that read this blog are as well! I would ask you to carefully consider and always challenge any and all "agreements" that are presented to you in regards to your employment. I never would have guessed that the innocent little stack of paper that precedes your employment could ruin your opportunities after your employment.

If "we" all whom are highly sought out by our competitors refuse to go along with overly broad, unduly long and unfair agreements that the industry will come around and start to quit trying to force those whom they so desire out of the business.

I have spent my life in this industry of printing and I have spent thousands of dollars in my education and tens of thousands of hours keeping up with the technology changes over the last 20 years. When I walk into a company I bring value, when I leave I should be allowed to continue my quest in this industry.

None of the hardware providers that I have worked for: Konica Minolta, Datamax, nor Ikon have so greatly impacted my knowledge or offered (such valuable consideration) with their "top secret, proprietary, confidential and otherwise considered trade secrets" that I should be banned from working in this business. In fact all of the hardware companies that I worked for were greatly impacted by the "knowledge, training and other valuable contributions that I left with them" that they are better because of it.

I was involved with Printing a decade and a half before even running across them, and was involved with Digital Printing almost a decade before any of them got involved with it. I will say that Konica Minolta and Datamax (whom both I signed a non-compete) never gave me any hard time and with the application of a bit of professionalism and integrity I never heard a word from them and still continued to work in the same city selling hardware. Only time will tell if Ikon is as reputable.

In light of this information remember ONE simple thing. Pirate Mike is in fact a PIRATE involved with selling digital printing equipment - NOT an attorney! I am not responsible nor obligated to find you "healthy" employment and in no way should my opinions be construed as a contract to give you advice or encumber me in any way either in this lovely state of TEXAS or anywhere that good quality H2O can be found! Even though I may have certain implications in some countries that do not allow employment I certainly do not have any in countries that do!

So what does all that mean?

No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney. Thank you!
This is just the uneducated opinion of a pirate that sells digital printing.

1. CBS Studios, "The Borg – Video Documentary", 2006, http://www.startrek.com/startrek/view/features/documentaries/article/5299.html

2. Light v. Cental Cellular Co. of Texas, 883 S.W.2d 642 (Tex. 1994).

3. Onecle.com, http://law.onecle.com/texas/business/15.50.00.html, http://law.onecle.com/texas/business/15.51.00.html, http://law.onecle.com/texas/business/15.52.00.html

4. Brown, Betty "NON-COMPETITION AGREEMENTS IN TEXAS", 2010, http://www.brownemploymentlaw.com/non_competition.shtml

5. Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642, 644–45 (Tex. 1994).

6. Wood, Robert http://blog.texasnoncompetelaw.com/ 2010, K&L Gates LLP

7. Texas Board of Legal Specialization http://www.tbls.org/

Got Coach? One pirates view on having a life coach…

Now this really could apply to many areas of your life. What is amazing to me is how many people that I talk to that are really dissatisfied with where they are in life. They are not happy with their progress at work, home etc. What is even more amazing to me is how many emails I receive that talk solely of how they are amazed at my hobbies, interests and pursuits.

I admire people that are "living their dream," as I am living mine. But I don't envy, or wonder or get amazed, I just admire that they had the courage to step out and be different. I remember a statement that has stuck with me my whole life. It went something like this, "Why watch dynasty on tv, when you could be out creating your own?" If I remember right it was a slogan that Amway used in pep rallies. But the importance of what it is saying is still true.

I think that direction, fear not having someone to use as a soundboard are all reasons for not accomplishing our goals and dreams especially as it pertains to work.

Now what do Professional Athletes, CEO's, actors, have in common? They all have coaches. Tiger Woods has a swing coach, Actors have theatrical coaches, CEO's and powerful business people use life and sales coaches. So why do so few of us have a coach? What is a coach?

Most definitions use some phraseology like this, "one that gives instruction." Now if you're not achieving what you want out of your personal, professional and spiritual life surely you can see the value of having a personal coach?

Now it is much like a counselor, except that you are really going to get somewhere; and you're going to get more than an introspective view of what has happened to you in your life and how you processed it. This is relative to what is going to happen to you in the future and how successful and fulfilled you're going to be. Now granted a psychiatrist and the many related fields are for mental illness, and there is certainly room for that. But a life coach and a counselor have their roots in the same pot, and many times will blur together in a successful individuals life. A good Life/Sales/Executive Coach will have a background in counseling, to help guide you through the tough business and personal challenges that you will face.

A good coach will be a mentor, teacher, counselor, coach, guide, friend, and will often say things to you no one would have the guts to say. (Except some of my friends, they have no shame in telling me what they think I need to hear)

Now I have been in executive level sales for 6 years, during those 6 years I have almost always had a coach. From Zack Jones at Konica Minolta to Larry Poe who was a Sales/Executive Coach that Datamax employed to work with us to Monica Huddleston or Brian Balow at IKON. It is invaluable to have someone to work in this capacity for you. You cannot afford to not have a coach, unless you just don't have any dreams or desire to get ahead. And then it is ok not to have a coach. Family and friends can help, but they typically are poor sources for this type of training. We usually need someone from the outside that can speak into our lives that we have no other feelings for or some other relationship that would interfere with our learning and listening. Sadly enough it is typically our family and friends that become dream stealers as they have no perspective or experience that can help us get to the next level.

I am a firm believer in having a mentor, counselor, trainer and coach. I have benefited greatly from having this type of relationship resource. And more than the personal benefits that come from it that go into every area of your personal life and help to make you the person that you would like to become. It also advances you professionally and directly impacts the type of success you have both financially and in your career mobility.

All I can say is Got Coach?

"Go confidently in the direction of your dreams! Live the life you've imagined. As you simplify your life, the laws of the universe will be simpler." - Henry David Thoreau

Konica Minolta; caught between a hurricane or typhoon?

The terms "hurricane" and "typhoon" are regionally specific names for a strong "tropical cyclone". A tropical cyclone is the generic term for a non-frontal synoptic scale low-pressure system over tropical or sub-tropical waters with organized convection (i.e. thunderstorm activity) and definite cyclonic surface wind circulation (Holland 1993).

Termination of the Strategic Business Alliance Agreement with Oce
Tokyo (February 10, 2010) --Konica Minolta Holdings, Inc. (Konica Minolta) today announced that the company and Oce N.V. (Oce), headquartered in Venlo, the Netherlands (President and CEO: Rokus van Iperen), reached, through mutual consultation, an agreement to terminate the strategic business alliance agreement, entered into by and between both companies to cooperate in development and marketing for office and production printing systems.

Konica Minolta Enters into Basic Partnership Agreement with Oce
Konica Minolta Holdings, Inc (President and CEO: Yoshikatsu Ota) entered into a basic partnership agreement with Oce, a company headquartered in Venlo, The Netherlands (President and CEO: Rokus van Iperen) on January 14, 2008 to cooperate in development and marketing for office and production printing systems.

Short lived agreements and rapid changes in the industry have left Konica Minolta with probably the same taste in their mouths that Canon felt during the hurricane that hit them over the IKON acquisition. Except that Konica Minolta has lost several strategic agreements/alliances that will reposition them.

Both the loss of IKON and Oce as distributors surely will make Konica Minolta rethink their ideas on distribution. They will have to strengthen their market position via "Direct Operations" and a building up of their "Independent Dealership" Channels.

A small but fierce competitor in the marketplace, Konica Minolta will be quick to release new products that again revolutionize the way companies acquire business technologies. Watch for a bolstering of their production products and a strengthened commitment to commercial print and in plant operations by a building up of their sales and support staff in these areas. Taking their already well accepted Bizhub offering to the next level there can be only good things in their future. Now that the Danka acquisition is over and most of the fat has been trimmed they can get back to the business at hand. Konica Minolta has made much larger competitors rethink their R&D allocations as showed by Canon's launching of the imageRunner Advance to combat the hugely successful Bizhub Pro 6501 and 65hc products.

Only time will tell how successful Canon's attempt will be to regain the large amount of territory they lost over these products. Now in a race Xerox, Konica Minolta and Canon come to the marketplace with viable mid level production color devices that are suitable in commercial print and in plant operations. Ricoh has yet to bring to the market a system that is reliable enough and with the appropriate color fidelity to get a serious look. The C900 and C720 is a nice attempt but without sufficient bit depth and fusing strength to print on offset sheets, these are hardly products that can last in real commercial print operations. Maybe high speed office applications at best, but with many other offerings that come from other manufactures at a better price per pound so to speak. Konica Minolta has been pushing up against long standing production manufacturers like HP and Kodak and are only going to continue to take ground as their product offering strengthens.

The storms continue; but we know that with all hurricanes and typhoons there is always calm winds after they pass.


Fair Sale'ing,,,
Pirate Mike

Pirate Mike; what is it about production that makes good men go bad…

Call to production; what is it that makes us sell our soul to be great…

So what is it about production copiers that lure dealers and manufacturers alike? Is it the large hardware revenue opportunities that lure organizations to seek out pirates to push their wares? I think not; everyone knows that the profits that come from the hardware revenues goes to keep the lights on and pay everyone. So what is it? What keeps VPs and Owners up all night dreaming of the one hit wonder?

When service directors say that we are running them into the ground? Well if .003 or .045 is so bad what do you keep approving it? How is everyone else doing it? Why is .0049 their "lead with" rate? Explain that to me. Is it that their service organizations have attained a level of automation and sophistication that tops the normal human organization that is still relying on human might and intellect?

If it is so desirable to do this business why is everyone so skittish? Why do organizations leave the production arena as quick as them came into it? It seems that the few that are known for selling production solutions love it and the rest can just not compete. For the few they seem to put the least value on their people. Why is that?

Why is it that when the future is obviously moving in the direction of full color messages and faster speeds, more capacity and higher volumes? With the sale of this "high speed" equipment comes with even more complex environments to place them in. More varied applications and software systems that the machines and high security systems that they must interface with.

With this ever evolving complexity comes also a sour market and soft economy. With the tough economic environment comes a greater margin compression from a better trained, experienced and motivated level of competition.

They say that the consolidation of large independent distributors and the eroding of the small dealership has put a lot of talent on the street yet my phone keeps ringing looking for a "Production Specialist" or a "Commercial Print Rep" or a "Print for Pay Rep". I love how you can tell someone what you are looking for and they ignore everything you said and say something like, "you know we would love to see you over such and such area calling on the print for pay market."

Why? They traditionally are the lowest margin deals that quite frequently do not pay their bills! This is not a slight on the industry. It is quite comical to watch the Dallas – Fort Worth marketplace. We are the 5^th largest print market in the country and at least 1 or 2 large shops go out of business every month. We started off with 840 commercial print and quick print shops in 2009 and in 2012 it is predicted that we will be down to 600.

So what does that mean? Are companies printing less pieces of paper? NO we are constantly growing the amount of digital sheets we produce. So what does that say about the print for pay market? Are these companies not being run efficiently? Is there poor leadership, inconsistent business practices? Have you ever tried to acquire credit for a print for pay organization? It is miserable; you almost always need 2 years of financials and on and on.

So with all of this uncertainty and financial instability why do copier dealerships and manufactures direct outlets die trying to place this "Big Iron" in these shops that will run their technicians into the ground, cuss out our receptionists and eventually not pay their bills?

What is so urgent about the call to production? What is it about the large multi case orders of toner that sit upon the dusty shelves of the environmentally volatile warehouse space that houses the 55 gallon drums of solvent and 25lb tins of ink? I have been selling the Big Iron for some time and have yet to understand the reasoning behind the mad dance that flows from the scent of an RFQ or the nearing of a lease end.

What is it about the mad addiction of polymerized toner running through our veins that makes us fight to the death over a $150,000.00 worth of equipment to end up selling it at cost and at .00 nothing just to get yelled at by our service director that signs the order and then to get fired from our area vice president for doing what we were told to do.


May the toner reduction mode be selected and every sheet be clicked twice,


Pirate Mike