Non competes

[Geraltofrivia]

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Has anybody successfully removed a non-compete/restrictive covenant from their contract? If so, how? This is the only thing I want out of my contract but everywhere has it and refuse to take it out

 

[Sushirolls]

Then don't work for them.
I had one place drop the non-compete, but left the 'don't recruit our people' covenant.
I still walked away.

Or get them to reduce to 5 miles or something that basically is meaningless.

Non-competes are like a get out of free jail card. They will use that downstream as bargaining chip in any future litigation concerns. I.e. We'll drop your non-compete if you sign this release of liability...

 

[randomdoc1]

I've seen providers get out of the non-compete when they left. But it was because they had really good terms with their employer and that hospital system was so oversaturated anyway that they were eager to refer people out.

 

[Stagg737]

Non-competes are ridiculous and most places know it. Imo if it's not a PP in a mostly saturated market (which is about the only case I could understand this), then walk. Non-solicitation can be reasonable. I have one, but it basically says I won't actively steal patients from the hospital to any future PP and is more about not soliciting employees to follow me should I leave.

 

[Sushirolls]

But is non-solicitation really reasonable?
My amazing employee left from the Big Box shop I had been at years ago, because it was equally a horrible place to work for all people, regardless of job. She knew first hand I was 'one of the good docs' and was thrilled to have an opportunity to leave.

If a place is good place to work, employees won't want to leave. Its fundamentally easier to stay, and be with the 'devil you know' then risk something new. People are more inclined to default to their current employer, and similar to principles in chemistry there is an 'activation energy' to overcome to induce a change.

For instance I've openly talked with my assistant like heh, it's business. If you were to ever find something more beneficial for you, I won't be hurt, and will offer good letters, etc and not a barrier to your pursuit of a more positive employment. She's still here.

 

[comp1]

Honestly, if you seriously can't find ANYWHERE locally that won't strike a non-compete, you are in an extraordinarily saturated market. Work for the government (prison, VA, community health), do telehealth or move to somewhere with at least a modicum of reasonable labor laws that bans this kind of practice. Do not mess with these. They will hang it around your neck.

 

[claypigeon]

Non competes, non solicitation clauses, and the like are all anti competitive anti capitalistic practices meant to drive down wages and decrease competition. Imagine if we could show our employers the daily locums emails/texts/voicemails we all receive and use this to get a higher wage.

The FTC is likely to ban non compete nationally with a proposed rule and comment period ending 4/19.

Once in effect, non competes go away in 180 days.

In short, I wouldn’t overly worry about the non compete if you plan to be there for a year. Or you can negotiate to have it phased in. Many States already have a phase in period or it’s illegal. IE Indiana and California ban them. Illinois has a two year phase in. So this may not even be relevant

 

[Sushirolls]

But other states do enforce them and they do mean something and can't be glossed over.
I'm hopeful about the FTC, but not gonna be surprised if unchanged or [jazz hands] physicians are exempted.

 

[TheRightMedication]

Your jazz hands fill me with great sadness.

 

[calvnandhobbs68]

But other states do enforce them and they do mean something and can't be glossed over.
I'm hopeful about the FTC, but not gonna be surprised if unchanged or [jazz hands] physicians are exempted.

Already looks like this could be not applicable to "non-profits".

A Ban For Some, But Not All: Exception to the FTC’s Proposed Ban on Non-Compete Clauses | JD Supra

The Federal Trade Commission (FTC) sent a shockwave through the corporate world on Jan. 5, 2023, when it released a proposed regulation banning...

www.jdsupra.com

"Further, the FTC Act only applies to corporations “organized to carry on business for its own profit or that of its members.” Therefore, true nonprofit corporations are not subject to the FTC’s regulatory authority."

 

[littlefred]

So Kaiser's non-competes will be nullified?

 

[Sushirolls]

I thought kaiser is still considered a non-profit?

We all know Big Box shop health systems that are non-profit... are truly non-profit. I mean Mayo Clinic is Non-profit. Cleveland Clinic is non-profit. Banner Health is non-profit. Providence Health system is non-profit. Harvard Pilgrim Health is non-profit. Advocate health care is non-profit. The list goes on... Throw a stone, hit a hospital, non-profit. Their business practices clearly capture the spirit of non-profit and exemplify their helping mission statements.

 

[comp1]

I understand the FTC not feeling they have authority over non-profits. However...non-competes do not seem like something that act in the public interest and hopefully another federal agency will.

 

[splik]

I thought kaiser is still considered a non-profit?

kaiser is a non-profit, but TPMG which employs physicians etc is for profit.

So Kaiser's non-competes will be nullified?

Kaiser doesn't have a non-compete (at least not in california where they are illegal). They do however stop you doing any other work on the side without taking their cut if you work for them. Non-competes only pertain to what happens after you leave a job. That employer can stop you doing outside work if they want. My old employer didn't have a non-compete but if you were faculty you couldn't do outside work, it was regarded as a "conflict of commitment" to the university. Of course it was BS but nothing to do with "non-competes" as the law defines it

But is non-solicitation really reasonable?

I think this is complicated. For a big box shop psych clinic, non-solicitation is not an issue because they can't deal with all those psych patients. My old employer introduced a non-solicitation clause my last yr which was ridiculous because they didn't have the bandwith to deal with it. Many psychiatrists left and took their patients with them. I was very careful not to solicit my patients but they are of course free to follow you and I told the ones who wanted to continue seeing me they could look me up if they wanted to (and they did). But if I was a small practice owner and I invested in someone and they just took all those patients with them and set up shop down the road, I might not be happy about it. But again, what do you do with those patients anyway, and patients still have the choice to continue seeing their doctor if they want and the doc is available.

 

[finalpsychyear]

kaiser is a non-profit, but TPMG which employs physicians etc is for profit.

Kaiser doesn't have a non-compete (at least not in california where they are illegal). They do however stop you doing any other work on the side without taking their cut if you work for them. Non-competes only pertain to what happens after you leave a job. That employer can stop you doing outside work if they want. My old employer didn't have a non-compete but if you were faculty you couldn't do outside work, it was regarded as a "conflict of commitment" to the university. Of course it was BS but nothing to do with "non-competes" as the law defines it

I think this is complicated. For a big box shop psych clinic, non-solicitation is not an issue because they can't deal with all those psych patients. My old employer introduced a non-solicitation clause my last yr which was ridiculous because they didn't have the bandwith to deal with it. Many psychiatrists left and took their patients with them. I was very careful not to solicit my patients but they are of course free to follow you and I told the ones who wanted to continue seeing me they could look me up if they wanted to (and they did). But if I was a small practice owner and I invested in someone and they just took all those patients with them and set up shop down the road, I might not be happy about it. But again, what do you do with those patients anyway, and patients still have the choice to continue seeing their doctor if they want and the doc is available.

Just give them your new business cards. It's still up to them if they want to jump ship. The whole non compete is nonsense and hopefully nationally rescinded. Patients should have the ability to follow their doctors and be given the information to do so. It shouldn't be hidden nonsense.

 

[allantois]

Utter garbage that increases the cost of healthcare. Hopefully, the FTC bans them

 

[allantois]

But is non-solicitation really reasonable?
My amazing employee left from the Big Box shop I had been at years ago, because it was equally a horrible place to work for all people, regardless of job. She knew first hand I was 'one of the good docs' and was thrilled to have an opportunity to leave.

If a place is good place to work, employees won't want to leave. Its fundamentally easier to stay, and be with the 'devil you know' then risk something new. People are more inclined to default to their current employer, and similar to principles in chemistry there is an 'activation energy' to overcome to induce a change.

For instance I've openly talked with my assistant like heh, it's business. If you were to ever find something more beneficial for you, I won't be hurt, and will offer good letters, etc and not a barrier to your pursuit of a more positive employment. She's still here.

It depends of how it is worded; but who is to say that the employee did not approach you about the employment opportunity first?

 

[allantois]

Just give them your new business cards. It's still up to them if they want to jump ship. The whole non compete is nonsense and hopefully nationally rescinded. Patients should have the ability to follow their doctors and be given the information to do so. It shouldn't be hidden nonsense.

I would be careful about that approach.. I recently went through this. I would let patients know I am leaving.. and if they asked me where I am going, then I would tell them.

 

[Shikima]

Bottom line, never sign. Walk away. You have more value than you realize.

 

[TheRightMedication]

I would like to add something I don't see mentioned yet - while I've been told by many that non-competes are bogus, you can sue anyone for anything at any time. A contract certainly helps get a case going.

I'm not saying to live in fear of your non compete, but I am saying you shouldn't view your risk as 0.

 

[dieABRdie]

Has anybody successfully removed a non-compete/restrictive covenant from their contract? If so, how? This is the only thing I want out of my contract but everywhere has it and refuse to take it out

Non competes are very much state by state... some are flat out illegal (California); some list certain exceptions (physicians, etc.); and in some states they are straight up legal. https://beckreedriden.com/wp-content/uploads/2022/07/Noncompetes-50-State-Survey-Chart-20220721.pdf

I did get one removed from a large for-profit hospital system contract. I had to hire a lawyer to get them to even to respond to the request. It took a couple months but finally they removed it because they needed someone. I was just about to sign... and then.... Covid.

They yanked the offer. Thank god because something way better opened up. But they can be enforceable in some states, so consult a lawyer if you need to.

Or just be willing to walk.

 

[allantois]

Non competes are very much state by state... some are flat out illegal (California); some list certain exceptions (physicians, etc.); and in some states they are straight up legal. https://beckreedriden.com/wp-content/uploads/2022/07/Noncompetes-50-State-Survey-Chart-20220721.pdf

I did get one removed from a large for-profit hospital system contract. I had to hire a lawyer to get them to even to respond to the request. It took a couple months but finally they removed it because they needed someone. I was just about to sign... and then.... Covid.

They yanked the offer. Thank god because something way better opened up. But they can be enforceable in some states, so consult a lawyer if you need to.

Or just be willing to walk.

Which goes to show that it's just lawyers creating business for each other

 

[Geraltofrivia]

I'm basically between two places. One which has a non-solicitation, and one which has a non-compete without a non-solicitation. I guess I'll make it clear I'm not willing to compromise on the non-compete. To me, I thought the non-solicitation was reasonable although I did ask for it to be removed too

Thanks guys

 

[Merovinge]

I'm basically between two places. One which has a non-solicitation, and one which has a non-compete without a non-solicitation. I guess I'll make it clear I'm not willing to compromise on the non-compete. To me, I thought the non-solicitation was reasonable although I did ask for it to be removed too

Thanks guys

I actually think non-solicitations are fair and reasonable for MDs in some cases. If someone is shunting a bunch of patients to you at their expense for a year and then you leave and start your own practice or join a different one, that does materially hurt them and gives you a potentially unfair onramp to building a practice. I don't blame docs for signing those.

Non-competes can go the way of the Dodo bird, the wage suppression nonsense for MDs so that MBAs can profit more is utter rubish.

 

[comp1]

Non-competes make no sense at any time and should be universally banned. There are plenty of patients for everyone with waitlists for months. Non-competes exist solely to make the physician's life miserable if they try to leave and to try to renegotiate things out of the physician on the back end. They aren't even otherwise helpful for the employer.

 

[Celexa]

I got the noncompete removed from my academic contract for next year. As someone else said above, you have to be willing to walk away.

Anecdotally from my experience and those in my and adjacent cohorts--overall we are seeing academic depts sloowwwly start to realize if they want to keep young faculty they don't get to dictate all the terms. Slowly. Haltingly. But there is some movement.

 

[Geraltofrivia]

I'm walking away from a place in a very desirable area that was unwilling to negotiate on it. Thank you guys for the feedback and input on them

 

[Merovinge]

I'm walking away from a place in a very desirable area that was unwilling to negotiate on it. Thank you guys for the feedback and input on them

Funny hill to die on given the tea leaves are strongly betting on these being removed by the government.

 

[Geraltofrivia]

Funny hill to die on given the tea leaves are strongly betting on these being removed by the government.

Possibly. Depends on the state's individual case law. Any FTC action will also be litigated as it is outside of the scope of the FTC to regulate these. Unless anything happens by statute, I am not sure I am convinced anything positive will happen.

 

[Celexa]

Funny hill to die on given the tea leaves are strongly betting on these being removed by the government.

Even obviously "unenforceable" non competes can require cost and money in a legal battle regardless, and an institution has deeper pockets than an individual.

This was the argument my dept tried to use, "we don't enforce it and it's probably unenforceable" (the noncompete was part of allegedly institution-wide language) and I told them I needed a contract that reflected what we had agreed on (they knew of my plans for private practice a long time ago) and I think a hill WELL worth dying on. I have seen leadership change at instituions and with it complere 180s in attitudes towards their employees.

 

[comp1]

Concur, very good hill to die on. Honestly, I would be very skeptical of any company that had them by default, full stop. You don't know what other trickery they are doing and they clearly aren't recognizing from the outset that this is completely an employee's market. However, I wouldn't necessarily say don't work for them if they were willing to remove it.

 

[Merovinge]

Concur, very good hill to die on. Honestly, I would be very skeptical of any company that had them by default, full stop. You don't know what other trickery they are doing and they clearly aren't recognizing from the outset that this is completely an employee's market. However, I wouldn't necessarily say don't work for them if they were willing to remove it.

Oh I completely agree, not sure if my last post was worded wrong, I just think it's odd employers are so into them. I have zero non-compete at my current job.

I do see PE firms like to have them be as heavy as possible to try and limit docs leaving which hurts their multiplier. I am sure they will be using approximately 2875643973 dollars to lobby against these changes in congress and buy out our FTC.

 

[Celexa]

Oh I completely agree, not sure if my last post was worded wrong, I just think it's odd employers are so into them. I have zero non-compete at my current job.

I do see PE firms like to have them be as heavy as possible to try and limit docs leaving which hurts their multiplier. I am sure they will be using approximately 2875643973 dollars to lobby against these changes in congress and buy out our FTC.

Ah you meant the company dying on the hill. Agreed! I read your post as implying it was the OP on the hill, probably bc so many people asked me why I felt the need to be so stubborn during my own negotiations....I now have a hair trigger to anyone mentioning hills.