Standard Clauses in Physician Employment Agreements - Employment at Will

Physician Employment Agreements: Employment at Will Clauses – what do these look like?

Sample:  “Your employment with the Practice is for no specific period of time. Your employment with the Practice will be “at will,” meaning that either you or the Practice may terminate your employment at any time and for any reason, with or without cause. Any representations which are contrary to or conflict with the foregoing that may have been made to you are superseded by this letter agreement. Notwithstanding anything to the contrary, in keeping with the “at will” nature of your employment relationship with the Practice, the Practice reserves the right to review, on an annual basis or more frequently as determined by the Practice, and make changes to your job description/duties and title and your compensation and benefits. Although your job description/duties, title, compensation and benefits, as well as the Practice’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and a duly authorized officer of the Practice.”

Physician Employment Agreements: Employment at Will Clauses – what do they mean?

Basically, these “Employment at Will” clauses mean that you can quit any time you want and, conversely, the practice can fire you any time they want.  Either side can do this for good reason, bad reason, or no reason at all.  The only real limitations on the practice’s authority to terminate you, are based on protected categories like, race, age, gender, etc., as well as retaliation.  But this does not mean that the practice has to have a fair, or even defendable, reason to terminate.

Physician Employment Agreements: Employment at Will Clauses – what should I do?

Think about your job prospects.  The alternative to employment at will is a contract setting forth a term.  But this is a double-edged sword.  While you have more job security with a term contract, you are also locked in with a practice, perhaps for longer than you want to be.  The key is to think of your employment agreement like a pre-nuptial agreement, prepare for the worst, and you can cover yourself.  But to do so will require you to think hard about your career and future.

You do not have to be a genius to figure this stuff out on your own, but if you want to make sure, or just don’t have the time to put into it, you can also call an attorney who can walk you through every step of the process.

Want Help with your Physician Employment Agreement?  Contact us – we can help.  Our attorneys have worked with hundreds of physicians from all across the country.

We specialize in physician employment agreements

We specialize in physician employment agreements

Standard Clauses in Physician Employment Agreements – The Non-Solicit Clause

Physician Employment Agreements – Non-Solicit Clauses:  What Do These Look Like?

Typically, there are two kinds of non-solicit agreements for physicians:  (1) non-solicitation of practice patients, and (2) non-solicitation of practice employees.  Below is an example of each:

Non-Solicitation of Patients

During the term, and for 12 months thereafter, Physician may not solicit patients of the Practice.  However, following termination of employment, Practice will honor patients’ freedom of choice and upon a patient’s request will inform the patient of Physician’s new contact information.

Non-Solicitation of Employees

During the term, and for 12 months thereafter, Physician may not recruit, solicit, or induce to terminate their employment or other relationship with the Practice, any employee or independent contractor of the Practice.

Physician Employment Agreements – Non-Solicit Clauses:  What Do These Mean?

Physician non-solicitation clauses are designed to prevent the departing physician from poaching the practice’s patients and people.  Really, these clauses seek to prevent a departing physician from messing with the practice’s business.  Seems fair enough, right?

Physician Employment Agreements – Non-Solicit Clauses:  Are These Enforceable?

It depends on how broad the physician non-solicitation clause is.  Generally speaking, the more narrowly drawn (i.e. the less restrictive) the non-solicit clause, the more enforceable it is.  The examples above are more or less reasonable and would likely be enforceable.  But we’ve seen some really over-reaching agreements.

The more important issue, practically speaking, is not whether the physician non-solicit agreement is enforceable, what really matters is whether the practice will seek to enforce it.

Physician Employment Agreements – Non-Solicit Clauses:  What Should I Do?

Duh … call an employment lawyer.  First of all, we’re delightful! 

Second, we can help you analyze how enforceable your non-solicit agreement is, the likelihood of your former practice seeking to enforce it, and what you can do to protect yourself.

We have handled hundreds of physician employment agreements throughout the country.  If you need help reviewing, revising or negotiating your physician employment agreement, call or email us any time.  We are here to help.

Standard Clauses in Physician Agreements: The No Other Agreement Clause

Sample “No Other Agreements Clause”

You represent that you have not entered into any agreement with any other employer or party which would restrict your right to enter into this agreement or perform professional services as an employee of PRACTICE, and you understand that the PRACTICE has relied on this representation in offering you this agreement.

No Other Agreements Clauses – What Does it Mean?

Basically, these “No Other Agreement” clauses prohibit you from working for a practice when that work would violate another agreement - like a non-compete.

So, say you are a pediatrician and have a non-compete with Practice. Practice A’s non-compete says that you cannot practice pediatrics within a 5 mile radius of the primary location of Practice A.  You quit Practice A and move on to Practice B (congrats on the new job!).  Practice B hands you an employment agreement with a No Other Agreements clause.  If you were to sign Practice B’s employment agreement, not only would you be violating you non-compete with Practice A, you would also be violating your new agreement with Practice B, by certifying (incorrectly) that you are not prohibited from working for Practice B by any other agreement.

No Other Agreements Clauses – what should I do?

Before you move on to practice B, you need to make sure you understand your agreement(s) with practice A.  More often than not, you can do this yourself.  Just look out for things in your agreement(s) with Practice A that impact your future.  These are usually called “Restrictive Covenants,” which is a umbrella term that includes, among other things, non-competes, non-solicits and non-disclosures.  You do not have to be a genius to figure this stuff out on your own, but if you want to make sure, or just don’t have the time to put into it, you can also call an attorney who can walk you through every step of the process.

If your no prior agreements inhibit your ability to work for your potential employer, then this clause is fine. If there is a roadblock, it is definitely time to call an attorney and work out a plan.

Want Help with your Physician Employment Agreement?  Contact us – we can help.  Our attorneys have worked with hundreds of physicians from all across the country.

Email or Call any time.

Paid off the books? Your employers are (probably) crooks.

If you are being paid off the books, in cash or via personal check, your employer may be breaking the law. And you might be entitled to compensation.

Are you being paid off the books?  Chances are, your employer is breaking New York wage and hour law.  Just by failing to provide you with notifications regarding your wages and legally compliant pay stubs, your employer is breaking the law. 

If you are being paid off the books, you might be entitled to recover as much as $10,000 or more.

New York Labor Law requires employers to provide all employees with a wage notice when they start, spelling out the terms of their compensation.  The penalty for failure to do so can be as high as $5,000. 

New York Labor Law also requires employers to provide all employees with wage statements when they are paid, spelling out their rate of pay, deductions, and other wage-related matters.  The penalty for failure to do so can also be as high as $5,000.

The attorneys at Granovsky & Sundaresh can help you recoup this penalty - and maybe more.  We are experienced and aggressive wage and hour lawyers who fight to make our clients whole.  Not only will we examine whether we can recover these penalties for you, but we will also try to find other avenues to increase your recovery such as unpaid overtime, minimum wage or wrongful termination issues.

Call now. 646-524-6001. We have attorneys standing by to take your call. Or you can e-mail us - all e-mails receive a response within 24 hours.

Am I Going to Get Sued for Breach of Non-Compete and What Does That Look Like?

Are you going to get sued for a breach of your non-compete?  Maybe, depends on what you do.  Below is a thumbnail sketch of employment lawsuits related to alleged violations of non-compete agreements.

In most instances, a good rule of thumb is to “follow the money.”  If an employee moves from Company A to Company B and, as a result, Company A continues to chug along as normal, a lawsuit is very unlikely.  On the other hand, if, as a result of the employee’s move to a competitor, Company A loses money, a lawsuit is more likely.  This is why, for the most part, where we see lawsuits over non-competes, these happen when an employee leaves and takes a big book of business out the door.

Non-compete lawsuits tend to “follow the money” because every civil lawsuit has two phases:  liability and damages.  Liability is legal responsibility for one’s actions and/or omissions. In the context of non-competes, an employee is “liable” for breach of a non-compete if he/she violate the terms of the non-compete (i.e. works for a competitor during the prohibited timeframe, geographic area, etc.).  If a plaintiff can establish liability, the next phase is damages.  Basically, damages are the amount of harm plaintiff suffered as a result of defendant’s actions.  Thus, if as Company A continues to chug along after an employee moves to Company B (even if Company B is a direct competitor), Company A has suffered no damages and would not likely recover much by way of a lawsuit (while expending money and resources on a lawsuit).  From Company A’s perspective, a lawsuit against a departing employee, even if he/she breached their agreement, is a losing perspective.

Nevertheless, this does not guarantee that an employer will never seek legal action against a departing employee for breach of a non-compete.  Where employers do pursue this course of action, it typically proceeds as follows:  (1) cease and desist letter, (2) application to the court seeking an injunction, and (3) a lawsuit seeking damages and other relief.  Let’s discuss each step in turn.

  1. The Cease and Desist Letter. This is not a legal action. It is a threat letter from a lawyer. The threat is that if you do not “cease and desist” (in layman’s terms – “stop”) doing something – like working for a competitor – your former employer will sue you. Most of the time, the matter ends there. Often the parties can work things out short of legal action. And, very frequently, your former employer is just bluffing.

    • We respond to cease and desist letters on a FLAT FEE BASIS. In fact, we offer a flat fee service to do everything we can to avoid a lawsuit.

  2. The Application for an Injunction. Unlike a cease and desist letter, if your former employer is seeking an injunction, this is in a court of law. An injunction is a court order requiring you to do (or not do) something – like work for a competitor. Injunctions are very difficult for employers to obtain. This is because, in order to convince a court to order an injunction, the employer has to show that, if the court does not issue an injunction, the employer will suffer “irreparable harm.” This is a high burden, especially in light of the fact that monetary damages alone do not prove irreparable harm. Because of this, employers rarely seek injunctions. And, in the rare instances where they do, after the court issues or denies the injunction, most employers stop and do not pursue a legal action for damages.

  3. Lawsuit for Damages. This is an ordinary lawsuit. The employer will assert that by virtue of your breach of the non-compete agreement, it suffered damages. It is the employer’s burden to prove (a) that you breached the agreement and (b) that it suffered damages as a result. If it does, it recovers those damages.

Questions, comments, just want to chat with lawyers?  Call or e-mail us any time.  We are here to help, and we offer flat-fee consultations on non-compete agreements.

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I was fired and they say it was "for cause." Can I still get a severance?

No one likes to be fired, least of for a mistake or misunderstanding or a minor infraction.  But it happens all the time:  for whatever reason a boss doesn't want to work with an employee anymore and finds a reason to fire him or her. 

And that is all it means to be fired "for cause": it means your boss named a specific reason why you were being fired.  While being fired "for cause" may impact your ability to collect unemployment benefits, it does not necessarily impact your ability to negotiate a severance.

First of all, to put it simply, your boss may have lied.  Your boss may have said you were being fired for losing a small client, or for submitting the wrong paperwork, or for dinging the company truck.  But maybe your boss also wanted to fire you because he knew you were pregnant, or because he knew you would soon earn a bonus he did not want to pay, or because he knew you had complained about improprieties at the company. 

In such a case, your boss's stated reason for firing you is what lawyers call a "pretext."   In fact, you may have a claim against your employer for firing you in violation of law.  The bad news is that it is pretty common for people to be fired in violation of the law.  The good news is that illegal firings are one of the most common reasons why severances are paid.  In exchange for the employee giving up the right to sue their employer for the employer's illegal action, the employer pays the employee a severance. 

But even if your boss did not have some hidden and improper motive for firing you "for cause," that does not mean you cannot negotiate a severance, a payment of several weeks or months of salary on your way out.  Because if you have something of value that your company wants, they should have to pay you for it.  As we have discussed in previous posts, some common reasons our clients are able to negotiate severances are that they had:

  • ·         A claim to unpaid wages. 
  • ·         Good relationships with clients or customers. 
  • ·         Know-how, trade secrets and intellectual property
  • ·         Stock or shares or equity in the company. 
  • ·         Other legal claims against the company. 

Even if you have been fired for cause, if your company is asking you to sign any kind of separation agreement, or if you feel you have something of value that the company is asking you to walk away from, you may still have leverage to negotiate a severance.  Granovsky & Sundaresh is here to help.  Call or e-mail us any time.

I am on FMLA leave from my job, and I don't want to go back. Can I still get a severance?

It's common occurrence.  Maybe you just had a baby, and took some unpaid leave.  Maybe a family member got sick, and you needed some time off.  Maybe you got sick yourself, and had to miss work for a number of weeks.  In any case, right now you aren't going to work, but under the FMLA, or Family Medical Leave Act, your employer is holding your job open for you when you get back from leave. 

Except you don't want to go back.  Maybe you decided that you want to be a stay-at-home dad or a stay-at-home mom.  Maybe you found a new job that is more flexible, and will let you care for your sick relative long-term.  Maybe you have decided to go into business for yourself.  In any case, while you were on FMLA leave, you've made up your mind that you did not want your old job back.

Before you tell your old employer about your new plans, you should decide whether you want to negotiate a severance, and, if so, you should give careful thought to what you tell your employer, and when.

As we have discussed in previous posts, one simple question is ask yourself is this:  What are all the things your disliked about your old job?  Because some of the reasons why you don't want your old job back might be the basis for negotiating a severance:  

  • Did your old company ever fail to pay you, or take a cut of your commissions, or "forget" to pay you for overtime, or promise a bonus but not follow through?

  • Did your old boss or co-workers ever say or do anything that made you uncomfortable for being who you are? Was there someone at work who sometimes harassed you, or bullied you, or made remarks that just were not okay?

  • Did your old company make it hard to take family medical leave?

  • Did your old company refuse to accommodate you when you got sick?

  • Was your old company open to people of all backgrounds, races, religions, and sexualities?

If any of these situations rings true, you might have a legal claim against your old employer.  Your employer likely would be interested in avoiding even the possibility of a lawsuit, and so might be willing to negotiate a separation agreement with you, even though you are on FMLA leave.  In that separation or severance agreement, you would promise never to sue your company for anything that happened during your employment, and your company would pay you a severance.

Even if your old company was totally upstanding—respectful, accommodating, and fully professional—you may still be able to negotiate a severance while on FMLA leave.  For example, many companies ask departing employees to sign "separation agreements," in which the former employee promises not to compete for their old employer's clients or customers, or not to disclose their former employer's trade secrets or proprietary information.  If your former employer wants to control your future behavior, they should pay you for that, even though you are on FMLA leave.

Many employers shy away from firing anyone who has recently returned from FMLA leave.  Simply put, the employer does not want to appear to be punishing its employees for having exercised their rights to family medical leave.  What this means is that, if you are on FMLA leave and you know you do not want to return to your job, you have leverage that can be used to negotiate a severance.

If you are on medical leave from a job you don't want to return to, and if you want advice on how to negotiate your departure, Granovsky & Sundaresh is here to help.  Call or e-mail us any time.

My old company called me a freelancer. Can I get a severance?

Many of the laws that protect workers from discrimination and wage theft were written for the so-called "old economy," where a company that needed more help would just hire more employees.  But in the so-called "new economy" or "gig economy," many companies think they can achieve greater efficiency by limiting the number of employees they hire, and relying instead on supposedly more flexible sources of labor.  A company may call the people it hires freelancers, or consultants, or contractors, or vendors, or "temporary hires." 

If you have had a long working relationship that is now coming to an end, you may be able to negotiate a severance, even the company you worked for never called you an "employee."  

First of all, the company may have misclassified you.  It doesn't matter what the company called you; it doesn't matter whether the company issued you a Form 1099 instead of a Form W2 at the end of the year.  If you worked on a company's premises every day, if you all the equipment or software or data that you used to do your job was owned by the company, if you were under the day-to-day supervision of company employees, if you did not have final authority over your own schedule and practices, if you were not actively selling your services to a roster of companies, then you might have been an employee.

If your company misclassified you—if it called you as a freelancer or independent contractor even though you were, in reality, and employee—then you can negotiate a severance when you leave, just as any other employee could.  Does your company owe you unpaid wages or overtime?  Do you have any other claims against the company, including for failure to recognize your right to family medical leave, or to accommodation for a disability?  If so, all of these are leverage for negotiating a severance.

But even if your company did not misclassify you when it called you a freelancer or an independent contractor, you may still be able to negotiate a bonus payment at the end of your relationship.  Did the company ever fail to pay your invoices, or pay you less than you were owed on an invoice?  Do you have valuable confidential information, or customer contacts, that the company wants to protect with a new non-disclosure agreement or new non-compete agreement?  Were you issued any stock or shares in the company, in compensation for your work?  All of these could be leverage for negotiating a departing payment from a long-term business partner.

If you are a freelancer and are at the end of a long business relationship, Granovsky & Sundaresh is here to help.  Feel free to call or e-mail us any time.

I found a new job, and I want to quit my old one. Can I get a severance from my old job?

There are few satisfactions in life quite like finding a great new job.  But it is important not to let your pleasure cloud your judgment:  before you tell your old employer that you will be leaving, you should consider whether you want to ask for a severance.

One simple question is ask yourself is this:  What are all the things your disliked about your old job?  Because some of the reasons why you are leaving your old job might be the basis for negotiating a severance:  

  • Did your old company ever fail to pay you, or take a cut of your commissions, or "forget" to pay you for overtime, or promise a bonus but not follow through? 
  • Did your old boss or co-workers ever say or do anything that made you uncomfortable for being who you are?  Was there someone at work who sometimes harassed you, or bullied you, or made remarks that just were not okay?
  • Did your old company make it hard to take family medical leave?
  • Did your old company refuse to accommodate you when you got sick?
  • Was your old company open to people of all backgrounds, races, religions, and sexualities?
  • Did your old company make it hard for you to perform your National Guard duties?

If any of these situations rings true, you might have a legal claim against your old employer.  Your employer likely would be interested in avoiding even the possibility of a lawsuit, and so might be willing to negotiate a separation agreement with you.  In that agreement, you would promise never to sue your company for anything that happened during your employment, and your company would pay you a severance.

Even if your old company was totally upstanding—respectful, accommodating, and fully professional—you may still be able to negotiate a severance.  For example, many companies ask departing employees to sign "separation agreements," in which the former employee promises not to compete for their old employer's clients or customers, or not to disclose their former employer's trade secrets or proprietary information.  If your former employer wants to control your future behavior, they should pay you for that.

And remember:   Your leverage for negotiating a severance drops as soon as your old employer learns that you have found a new job.  So, before you tell your old boss about your new plans, decide whether you want to ask for a severance, and plan your strategy.

If you have found a new job, and want to negotiate the best possible terms for your departure from an old job, Granovsky & Sundaresh is here to help.  Call or e-mail us today.

What is severance, anyway? And who gets it? And how much?

Many of our clients call us for the same reason:  something is wrong at work, and they need to plan their next step. 

Sometimes our clients were just fired—maybe for a bad reason, maybe for a good reason, maybe for no reason at all.  Other times our clients have not been fired yet, but the writing is on the wall.  Still other times everything is great at work, but a promising new opportunity has come along, and our client needs to figure out how to put her old job behind her.

In any of these circumstances, one of our first questions is often: "Do you want us to try to negotiate a severance?" 

A "severance" is what lawyers call it when an employer makes a final payment to an employee, above and beyond the final paycheck.   A severance can be as small as a week or two of salary, or as large as the cash value of an entire company.   But no matter how much good feeling exists between you and your former employer, if they are paying you a severance, it's because they want something from you.

Typically what an employer wants is to be sure that the departing employee won't ever show up again, asking for more money.  This is why many employers demand that terminated employees sign a so-called severance agreement or separation agreement.  And let us pause here to say:  It is almost never a good idea to sign a severance agreement you do not fully understand; and it is almost never a good idea to sign a severance agreement without at least the opportunity to consult with an attorney.

The terms of severance agreements vary widely, but usually their most important provision is a release or waiver.  See below for links to articles explaining common severance agreement provisions.  The employer pays the employee some money; and the employee signs away any claim to ever getting any more money from the employer.

So how much severance should an employee get?  There is no simple rule, but if you have something of value that your company wants, they should pay you for it.  Here are some common examples of things you might have that your company should pay you for:

A claim to unpaid wages.  Say, for example, you were paid to work eight hours a day, but your company expected you work through your lunch break.  You might have a claim to the wages you were not paid for all those lunch hours you worked.   If your company wants you to release that claim, you could demand a severance.

  • Good relationships with clients or customers.  Say, for example, you worked as an accountant, and your former employer wanted to make sure that you did not compete for their clients by opening up your own accountancy on the other side of the street.  If they ask you to sign a non-compete, you could demand a severance.
  • Know-how, trade secrets and intellectual property.  Say, for example, you worked at a start-up and know everything there is to know about how to write the code for the next big thing on the Internet.  Your company might as you to sign a nondisclosure agreement, or NDA, so ensure you don't share what you know.  You could demand a severance.
  • Stock or shares or equity in the company.  Say you were a part-owner or a shareholder in the company that you are leaving.  Even if the company is worth nothing today, the other owners might want you to sign a document giving up your claims to the company.  You could demand a severance.
  • Legal claims against the company.  Say, for example, your boss fired you while you were on medical leave, or stopped giving you raises when he learned about your faith or your family situation, or gave you less overtime when you did not return his "flirting," or expected you to work in unsafe conditions because you are not a U.S. citizen.   You might have a claim against your former employer.  If your employer asks you to waive your claims, you could demand a severance.

In future blog posts, we will discuss these different situations, and some common ways they impact our clients' ability to negotiate severances.  But if something is wrong at work, and you need to plan for your next step, Granovsky & Sundaresh is here to help.  Feel free to call or e-mail us any time.

Explain My Severance - Part 1:  The Release

Explain My Severance - Part 2:  The Neutral Reference

Explain My Severance - Part 3:  Non-Disparagement Clause

Explain My Severance - Part 4:  Non-Admission Clause

Explain My Severance - Part 5:  No Re-Employment Clause

Explain My Severance - Part 6:  No Consideration Absent Execution