April 18, 2009 (Original publish date) • By Dennis Beaver
Would you like to guess the one occupational category most in need of seeing a lawyer before accepting a new job offer — but whose members rarely do?
It’s health care: Doctors, physician assistants, nurses, dentists, optometrists and pharmacists.
Especially physicians, these highly trained people at the upper end of the income scale work in an environment of trust, where honesty and fair treatment by employers is generally assumed — sometimes resulting in tremendous disappointment and financial loss to naive employees.
“Partly because of an occupationally induced sense of trust which begins in their professional schools — everyone doing what they can to help the patient — as a group they are the least likely to feel the need to see a lawyer before signing an employment contract,” observes Los Angeles Attorney Barbara Hensleigh, who works with doctors, helping them steer clear of nasty traps in “sick” employment contracts.
“Health care professionals aren’t usually trained in business, and often do not see the need to consult a lawyer before signing an employment contract, especially those fresh out of training. They are eager to get to work, to start seeing patients, earning a decent income. That can easily come back to bite them on the nose months or years down the road,” according to Attorney Hensleigh.
Hensleigh acknowledged the frustration that many lawyers often have with their doctor clients, who fail to consult a lawyer before signing an employment contract or, worse yet, before getting themselves involved in complicated business transactions.
“Is it mistrust of lawyers, or do you find that it’s just a matter of over-confidently believing they know more about the law then they really do, and therefore seeing a lawyer is a waste of money and time?” I asked.
“Occasionally, it is a combination of both. But physicians are pretty quick learners and realize just how important it is to have good legal representation, too often after they have found themselves up to their waist in alligators,” she added, with a smile.
If you have been handed an employment contract, or one you’ve signed is up for renewal, Barbara urges caution.
“Realize that what you sign can have tremendous negative consequences down the road. Under the surface of some of the most successful corporate health practices in America are owners whose sense of business ethics and morality would turn your stomach,” she stressed.
“Many will have language in their employment contracts that they know is illegal, relying on their employees to be unaware. Yes, that sounds cynical, but up to 90 percent of medical contracts I see contain illegal language, clauses which interfere with their employee’s right to seek employment elsewhere, or which burden them in very real, improper ways,” she warns.
“Some of the most damaging clauses in medical employment contracts fall into a limited number of extremely important categories, including: Independent contractor agreements, non-compete prohibitions, and payment of malpractice insurance after the employee leaves the office.”
“Some contracts try to classify employees as independent contractors. A true independent contractor is responsible for taxes, and all related business expenses, of course saving an employer from paying out that money. But in today’s practice of medicine it is rare to be hired as a true independent contractor on a full time basis,” she points out.
“Where employees have to be at the clinic at a certain hour, told when to take calls, perform certain tasks, staff certain offices and so on, then they are subject to control of management. They generally are not considered as independent contractors regardless of what the contract states.
“So, if you see that kind of language in the contract, this raises a red flag about the integrity of the employer. Ask yourself if you really want to work for someone who is attempting to skirt the law? This is where you need your own attorney, to either suggest what you can do on your own, or get involved in the negotiation process,” Attorney Hensleigh stated.
However, as any lawyer who has represented employees will tell you, one of the most dangerous paragraphs in a contract deals with what happens after employment terminates, the non-compete clause.
Can your former employer legally prevent you from working for someone else in town? What if your patients/clients/ customers want to know where you are? What if they want to follow you? How much can you tell them? Can you be stopped from informing the public that you’re no longer working for ABC Medical, but for XYZ?
“It does matter what’s written in the contract, former employees, unlike shareholders, have the right to work wherever, and for whoever they want to. So, language that limits where and for whom you can work is just plain illegal. But how will you know that unless a lawyer reads the contract?” rightfully asks a lawyer who actually likes doctors.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.