Is a Non Compete Enforceable Against a Physician Assistant?
Is a non-compete enforceable against a physician assistant? In short, it likely is. There are a handful of states in the United States where non-compete for healthcare providers are completely unenforceable. But as I said before, it’s less than five. So, it’s very likely if you’re reading this blog, that you’re in a state where they are considered reasonable and enforceable. What are some things that go into making a non-compete enforceable? Well, a non-compete simply says that the physician assistant can’t work within their specialty for a set period within a specific geographic region. How most practices would do this is let’s just say a PA is an employee of a small physician-owned group.
Now, let’s say you’re an orthopedic PA, the non-compete could state, you can’t work in orthopedics for one year within 10 miles of our office location, and then maybe the primary location where you are assisting in surgeries as well. That would most likely be considered a reasonable non-compete in most states. Most non-competes are going to be somewhere between one to two years. Anything more than two years is likely going to be considered unenforceable. So, I would attempt to try to keep it to a one-year maximum. As far as the mileage, it really depends on where you are. Obviously, if you’re in a city with a high density, one mile in rural Idaho is very different from one mile in the middle of Manhattan. Depending upon where you are geographically, it’s going to kind of determine whether the mileage is considered reasonable or not.
I mean, I will see some non-compete that will knock people out of counties, entire states, a hundred miles from their primary practice location. For the most part, these would not be considered reasonable and enforceable. If you’re working for a corporate-owned practice, or maybe they have multiple locations, you want to limit that geographic restriction to where you’re working. I’ll see contracts where maybe they’ll have 10 locations throughout a city. They’ll say it’s 10 miles from all 10 locations in the city. That’s not fair. It’s not fair that you’re restricted from working somewhere that you have never been close to. So, you want to limit the number of places that the non-compete can apply to. And as I said before, no more than two. Maybe the two places where you generate most of your charges. Other topics of interest include:
- How Many Locations Should a Physician Assistant Non Compete Apply To?
- Physician Assistant Non Compete vs Non Solicit
As I said before, as far as counties go, sometimes employers will state, you can’t work in the county that you’re in or any contiguous county, so any counties touching your county. I don’t think that would be considered reasonable or enforceable as well. Never go into a contract just expecting that it won’t be enforced. That’s a dumb way of looking at it. Okay, maybe it won’t be, but it may require litigation or arbitration on your behalf to get to that point, which can be expensive, time-consuming, and usually a waste of time. So, don’t sign a non-compete and think, it’s alright, they won’t be able to enforce it. Unless you’re in one of the states where it is completely unenforceable. And if someone is providing you with a non-compete in a state where they are completely unenforceable, it usually means they have no idea what they’re doing and it’s an enormous red flag and you should probably run and find someone else who understands the laws of the state that they’re in. A non-compete is a huge part of any contract.
Now, there are some PAs that I talk with, and they say, you know what? I don’t care about a non-compete. I’m coming here for this job specifically and if it doesn’t work out, I am moving away. And in that scenario, don’t spend any time or capital trying to negotiate the terms of the non-compete. If it will have no effect on you, work on the things that are more important. Are they going to pay for your malpractice insurance? Are they going to pay for tail if it’s a claims-made policy? Are you being compensated effectively? What is your bonus structure? How much time off do you get? All those things are more important to someone who has no concerns about a non-compete. So, you really should have a priority list of what’s most important to you in a contract. And if a non-compete isn’t important, then don’t even spend time on it, move on to things that are going to be more profitable for the PA down the road.
One other consideration: there are many PAs who act as independent contractors. Now, independent contractor agreements can include non-competes. However, they likely should be even less restrictive than a non-compete contained in an employment agreement. Kind of the entire point of an independent contractor agreement is it’s easy in, easy out. And if you are working for someone on a part-time basis as an independent contractor, and you’re prohibited from working in the entire city where you worked for them for one day a month, that would not be considered reasonable in my opinion. Make sure that if you are going to sign an independent contractor agreement, all non-compete language is removed from it. So, hopefully, that was helpful. A little primer on whether a non-compete is enforceable against a physician assistant.
What is the difference between a non-solicitation clause and a non-compete in a PA employment agreement? In any employment agreement that a physician assistant signs, there’s going to be a section that contains what’s called restrictive covenants, and a restrictive covenant essentially prohibits the PA from doing something either during or after the contract is terminated. Normal restrictive covenants would include a non-disparagement clause, non-solicitation clause and a non-compete. Let’s talk about the non-solicitation clause first. A non-solicitation clause will stop the physician assistant from soliciting, usually, patients, employees, other PAs, or physicians once they leave the employer for a set period. Most non-solicitation clauses are somewhere between one to two years. And some things to think about in a non-solicitation clause would be what the definition of solicitation is.
Most of these clauses will not define necessarily what is considered a solicitation. In my mind, soliciting would be making active steps or taking actions that would initiate contact with patients, employees, or other providers. An example of that would be, let’s say you’re in primary care, you download a patient list of everyone you’ve provided care to, and then either immediately after, or even in your last few weeks to the employer, you blast out an email to all your patients saying, I’m leaving this practice, starting a new practice. Please come with me. That would be prohibited by a non-solicitation clause. Another example would be, let’s say there’s an MA, an RN, or front office staff that you really like and vibe with, and you’re starting at a new practice, and you want that person to come with you.
Maybe you send them a text that just says, hey, as you know, I’m leaving, I’d love for you to come work for me or my new employer once I leave the practice. A non-solicitation clause would prohibit that type of activity. So, text messages, voicemails, and direct messages through social media, these are all provable things that if you’re going to solicit someone, if there was some litigation, they could get access to, it would be clear that you were soliciting people. Now, as far as patients go, you can’t dictate who someone’s healthcare provider is. If you leave the practice and you have a patient reach out to you and say, hey, I hear you’re leaving. I’d love for you to continue to be my provider. You can give them the information of, alright here, because you didn’t initiate or make any solicitation efforts.
The patient came to you first. So, if someone asks you straight up, hey, I heard you’re leaving. Where are you going? It’s not like you must clam up and not say anything. You can just give them the information. And then it’s up to the patient if they want to come with you or not. Now, as far as non-compete, non-compete would prohibit you from working as a PA for a specific period within a specific area. Normally, most non-competes are somewhere between one to two years and then would prohibit the PA from working as a PA maybe for 5 to 15 miles from their primary practice location. Some considerations when determining whether a non-compete is reasonable or fair are, one, does it specifically list the specialty that the PA is in? Let’s say your PA in orthopedics, does it say you can’t practice as a physician assistant in any specialty, or does it say specifically you can’t practice in orthopedics as PA? You want to limit it too as much as possible. If you’re working for a specific clinic, office, hospital, or whatever, you want to make sure that it’s just in the specialty, which would then allow you to at least work in something else for however long the non-compete lasts.
The length of time, one to two years is considered reasonable, obviously. One year would be preferable, anything above that would likely be unenforced. And then lastly, how large is it? This is going to be dependent upon your location. 10 miles in New York City is going to prohibit probably thousands of opportunities, whereas 10 miles in rural South Dakota, you may have no other opportunities. So, where you are geographically is going to determine whether 5 miles is fair or 15 miles is fair, or 20 miles is fair. And then the state is also important as well. There are a handful of states that completely prohibit non-competes. But most states in America do consider non-competes enforceable if they’re reasonable. So, that’s the difference between non-solicitation and non-competition. In non-solicitation, you can’t actively solicit business from past patients, employees, or other providers, then a non-compete is what stops the PA from working in either their specialty or any PA activities for a period within a specific area.
Physician Assistant Non Competes in Employment Agreements
How many locations should a non-compete for a physician assistant apply to? If you are a physician assistant and you’ve signed an employment contract or even some independent contractor agreements, it’s going to contain what’s called restrictive covenants. And a restrictive covenant essentially prohibits the PA from doing something either during or after the contract is terminated. In a non-compete, the non-compete is going to prohibit the physician assistant from working either as a physician assistant entirely or within the physician assistant specialty with that employer for a period, within a certain geographic radius of an office location. Let’s just work through those three things. First, you want to make certain that when you have a non-compete, it’s specific to what you’re doing for that employer.
So, if you’re in orthopedics and you’re assisting in surgery or whatever, your non-compete should say you can’t work as a physician assistant in orthopedics for one year and 10 miles or something like that. You don’t want it to say you can’t work as a physician assistant at all. Maybe you do want to stay in orthopedics, but if you don’t have many opportunities, at least you can continue to practice for a period until the non-compete ends, and then you can go back and look for whatever specialty you’re working for that employer. As far as how long it lasts, a non-compete normally will be somewhere between one to two years in length. Obviously, the shorter, the better, but I think most states recognize one year as being a reasonable amount for a non-compete term.
New Non Compete Length
But anything over two years, almost no way that it would be considered enforceable and reasonable by a court. And then last, what this blog is going to focus on is the location. In a non-compete, it will state either it’s just the one office location that the physician assistant is working at, or perhaps if they’re working in multiple locations, it’ll state every location that the physician assistant has worked out for the employer, or perhaps it’s like a corporate-owned practice, or maybe a hospital or healthcare network that may say every location that’s owned by the employer. Obviously, you want to keep it as small as possible, so it should just be five miles from the location that you’re working in, not any others. Now, there’s also going to be what’s called a look-back period.
And it’s going to say, if it’s a corporate employer, you worked at three or four different locations and maybe you haven’t worked in a specific location for five years or something like that. It should only be locations that you worked at for the employer over the last 12 months. You want to make sure that language is in there. And then as far as how many locations it should apply to, I would prefer maybe the two locations where you generated most of your charges. No more than that. It certainly is not fair if it’s an urgent care clinic that may have 20 locations in a big city that you should be prohibited from working as a PA, five miles from 20 different locations. That’s crazy. I don’t think that would be considered reasonable by a court. So, limiting the number of locations is very important, and having the language in there that states it’s only those locations that you worked at over the last 12 months. A non-compete can be critical for some people or at least having a reasonable non-compete.
A Contract Attorney Can Help You
Dealing with labor contracts is a very serious issue that will have a major impact on your financial future. If you don’t give these contracts their due attention, you could end up signing something that traps you in a job that you are less than thrilled about.
You are advised to get together with a contract attorney as soon as possible when you realize that you need some help getting your contract straightened out. The fees that you pay to have an attorney look over the contract are tiny in comparison to the ramifications that the contract will have on your life. With those facts in mind, we ask that you kindly contact us so we can work with you to determine your next steps in regards to the contract offered to you.
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