Physician Assistant Non Compete vs Non Solicit | Compete vs Solicitation
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. Other topics of interest include:
- Is a Non Compete Enforceable Against a Physician Assistant?
- Is 10 Miles a Reasonable Non Compete for a Physician Assistant?
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 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.
Solicit vs Competing
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.
Physicians Assistant Non Competition Law
Is a two-year non-compete reasonable for a physician assistant? If you’re a PA and you’re about to sign either an employment agreement or many independent contractor agreements, it’s going to include what’s called restrictive covenants, and a restrictive covenant essentially prohibits the PA from doing something either during or after the contract terminates. Normal restrictive covenants would include a non-disparagement clause, a non-solicitation clause, and then a non-compete, which is what we’re going to talk about today. A non-compete prohibits the PA from working either within their specialty or as a PA, completely within a specific geographic radius for a specific amount of time. Let’s take each of those components and then we’ll get into a discussion about how long a non-compete should be.
A couple of things you need to look for when it specifies exactly what the PA is prohibited from doing. It’ll either say you cannot practice as a physician assistant at all, or let’s say you’re working for an orthopedic practice. It may say you can’t work in orthopedics as a physician assistant. The reason why this is important is if you’re absolutely tied to an area and there’s absolutely no way that you can move after the contract terminates, then at least you’ll have other opportunities as a PA. Even though you may want to stay in your specialty, at least you would have another opportunity until the non-compete would end, and then you could get back into, in this case, orthopedics, if you wanted to. So, you need to make certain there’s a language that is limited to what you are doing for that specific employer.
Next is the geographic radius. Usually, somewhere between five to 15 miles would be considered reasonable by a court. There are some states, a handful of them in the United States where non-competes are completely unenforceable. But for those where it is enforced, the courts will look at the reasonableness of the non-compete. And then the factors that go into that is, what community is it? 10 miles in New York City could be vastly different than 10 miles in rural North Dakota where you may have zero other opportunities if you’re not working for a practice. You need to think about, alright, what is the setting where I am, and 10 miles, one place could be vastly different than 10 miles and another. Now, as far as how long it should last. Most non-competes last somewhere between one to two years. I would say almost no non-compete for a provider over two years would be considered reasonable or enforceable.
If you’re a PA and you have a non-compete, you want to get it as close to one year as possible. Most states do not have statutes or laws that specifically address non-compete. There are a handful, but most of them base kind on what is considered reasonable based on past case law, and most courts that then will litigate these non-compete cases will give their opinion on what they would consider a reasonable amount of time. And most judges find that one year or no more than one year would be considered a reasonable amount of time. It’s rare that you’re going to find a non-compete that’s less than one year. I mean, there are a handful I’ve seen that are six months, nine months, and 12 months is the standard.
What you want to do is if it’s 24 months, try to negotiate that down to 12 months. That would be a reasonable amount of time for a physician assistant. Now, as far as negotiating a non-compete, obviously, you want to do it in advance of signing the contract and then you need to consider how important it is to you. Let’s say you’re from a community, you have family in the community, and you have kids that go to school in the community, there’s just no chance that you can move after the contract ends, the non-compete could be the important thing in a contract to determine whether you want to move forward with it or not. Some people move into a community just for a job, there’s no commitment to a community, and they do not care if they must move.
Non-Compete Agreement Lawyer
In that scenario, it’s probably not worth putting any time into negotiating the non-compete. But it could be a deal breaker for some. If you work for a corporate-owned practice, a hospital, or a healthcare network, many times they’ll give a take it or leave it non-compete and it’s many times better just to leave it if it’s not going to work for you. You’ll have a better chance of negotiating a favorable non-compete if it’s with a smaller physician-owned practice, they’re usually more flexible. They can’t use the “well this policy”. I mean, anyone who says that, okay, great, it’s policy. It doesn’t mean you can’t do it; it means you don’t want to. Anyway, that is what a reasonable length of time for a non-compete is for a physician assistant.
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