Nurse Practitioner Non-Competes (ENFORCEABLE?)
Is a 10-mile restricted area within a non-compete clause reasonable for a nurse practitioner? Before I address that question, we need to go back and go over what is a NP non-compete clause. Normally, a non-compete clause is made up of two parts. The first part is a restriction of time. So, after your employment is terminated, you’re normally restricted from competing with your employer for anywhere between one to three years. I always try to advise clients that one year is probably the lowest that they’ll go. Occasionally, I’ve seen six months, but one year, you should push for when speaking in negotiating your employment contract. So, we have the restricted period, you cannot compete with your employer for a certain period, one to three years.
Then the second part of that is a restricted area. It’s normally a radius of miles, so that can be, well, it can really vary depending on where you live. It can be one mile. We’re talking about 10 miles today; is that reasonable and how is that calculated? Normally, the court refers to the phrase “as the Crow flies”, which means they literally put a dot on the map, draw a circle around that, and that’s your restricted area. The number one misconception with non-compete clauses is this is not miles on a road. This is miles on a radius that you can put a dot down from the location that it attaches to and draw a line around there. And that’s what you’re restricted from.
Now, we’re up to the, how many miles is reasonable? And we get the question a lot, is 10 miles reasonable? It just depends on where you are located. If you’re in a rural area, 10 miles might be reasonable. If you’re in New York City, not. But if you’re in a city like Phoenix, 10 miles might not be unreasonable because our city is so spread out, you could just go to the other side of one of those suburbs, you could commute easily and find work. So, 10 miles may be reasonable. It just depends on where you are in the United States. Other topics of interest include:
- Is a 2 Year Non Compete for a Nurse Practitioner Reasonable?
- Nurse Practitioner Non Compete vs Non Solicit
The other thing you want to consider when you’re looking at this 10 miles-restricted area is how many locations does this restriction attach to? If it’s only your primary location, so you’re only restricted from that 10 miles, a court may find that reasonable. Again, depending on where you live. But if you sign an employment agreement that states that multiple locations will attach that 10 miles, meaning, sometimes the language says if you provide services at any location, then the non-compete clause attaches to that. Let’s say you’ve covered for someone while they’re on vacation. That 10 miles will then attach to that location. Let’s just say we have three locations out there and 10 miles is going to attach to all three of those locations. You’re looking for upwards of 30 miles that you’re restricted from working. Now, that’s going to be unreasonable. I’ve seen contracts where it states any location of the practice, whether you’ve been there or not, you’re still restricted from providing services.
And that’s even more difficult especially if it’s a large practice, it’s going to be a huge area. So, 10 miles could be unreasonable. But again, it really depends on where you are in the United States. And then also, how many locations is that 10 miles attaching to? A non-compete clause is tricky. This is something specifically I always feel like it’s best to speak with an attorney about because they can pick it apart and make sure that it’s reasonable for you so that if your employment agreement is terminated by you or your employer, you’re not in a really difficult decision or position after, you’re able to find work without having to up and move, sometimes even out of the state.
Restrictive Employment Locations for a Nurse Practitioner
How many locations should a restricted area be attached to within a non-compete clause for a nurse practitioner? Before I kind of get into that, we need to back up and kind of talk about what is a non-compete clause. Depending on your state, there are some non-compete clauses are unenforceable, or you have to make a certain amount of money annually in order for the non-compete clause to become enforceable. You should always check that first or speak with an attorney about that. And then you want to look at your employment agreement. If you have a non-compete clause, it’s normally under restrictive covenants. Restrictive covenants are just promise not to do something.
In a non-compete clause, you’re promising not to compete with your former employer. Also, there may be a non-solicitation clause for patients or for employees. You want to read through that carefully. Lot of times, clients sometimes graze over these areas, but non-compete clauses can have serious consequences if you sign your agreement and then later leave and aren’t able to work in the area. Sometimes it’s large areas and you must move, or it’s difficult to find employment. So, non-compete clauses are really, important. I would say that’s one of the biggest areas that we’re advising clients on within an employment contract. With all that being said, normally it’s two parts. One, you’re restricted for a certain period, that’s anywhere from one to three years. After your employment has ended with your employer, you are restricted for a period to not compete with them.
And then for that period, you’re going to have a restricted area. It’s normally in miles, but it kind of depends on where you are in the United States. If you’re in New York City, miles are unreasonable, so you’re probably going to go like city blocks. If you’re in a rural area, it may be more miles. If you’re in a city, it might be less. It’s kind of unique to where you are. You want to think about if this job ends, will I be able to find work, or will it be difficult? So, we have the period, we have the restricted area, but here’s the tricky part: sometimes non-compete clauses talk about locations that the restricted area attaches to.
Let’s just use an example of 10 miles. You’re restricted to 10 miles from certain locations. Now, it should be, in my opinion, only from your primary location where you’re primarily giving your services. That’s where, in my opinion, you should be restricted, but you want to be careful. Sometimes there’s language in your employment contract that states that that restricted area attaches to any location that you provide services for them while you’re employed. So, if you cover for someone while they’re on vacation, the non-compete would attach to it even for a day. If someone is sick and you go to a different location, your non-compete clause now attaches there. So, if you have multiple locations, this can knock out a huge area of state even. So, you want to be careful about that.
Physician Practice Non-Compete Law
The other one that’s tricky is whenever you see language in a nurse employment contract that states you’re restricted from any location of the practice. That’s difficult. We don’t have a crystal ball. We don’t know in the future if they expand or if they’re going to have more locations. Let’s say they have three whenever you start, but they’ve bought out a couple of practices. Now, they have six and you’re restricted. Remember that 10 miles is from every one of those locations. Then we get into a huge area that’s restricted. So, in my opinion, in non-compete clauses, you should be restricted only from the primary location where you’re giving services at. That’s what the restricted area should attach to. And again, for a reasonable period. In my opinion, it would be one year, but I have seen anywhere from one to three years that you’re restricted.
In summary, you want to be able to read your non-compete clause and know exactly how long and what location I am restricted from, and you want to try to negotiate it to your primary location. It’s important, I think, to consult an attorney with these types of issues, just because non-compete clauses are a little complicated and you want to make sure that you’re getting it reviewed by someone who knows the laws in your state. And then also, who understands how this is going to affect you and can explain that to you, so you fully understand what you’re signing.
Consultation with Chelle Law
Nurses, if you are considering signing a professional contract with a new employer, we want to help. Please contact us and allow our office to set you up with someone who can review the documents that have been presented to you. We want to ensure that everything that your potential future employer is offering you is in your best interest. Get in touch today to get the process started.
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