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 Any representations which are contrary to or conflict with the foregoing that may have been made to you are superseded by this letter agreement.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.

  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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