Interesting Article Responses

Interesting Article Responses

Marcus Boren, B.Sc., C.P.

8/20/2002

Here are the responses to the article I posted, followed by a few
thoughts of my own.

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Thanks for a wonderful read. After reading it, I wonder why severence
packages are not standard for practitioners. While the idea makes
perfect
sense, I still have a big problem with NCAs.

I signed one, once. Signing it was a condition of a raise. When I
mentioned it to one of the surgeons I worked with, he opined that making
me
sign the NCA was not legal due to some rule of self determination. I
don't
know the law he was referring to or even if it was accurate. But the
idea
makes sense. By signing an NCA in our field, especially in smaller
cities
where there are fewer opportunities is restricting our rights to work in
our
chosen field in the place where we want to live.

If the severence package was large enough to provide income through the
course of the NCA time frame, the restriction would have less of a
financial
impact but it would still be a restriction of our rights to work in our
chosen field in the place where we want to live.

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If a company wants to restrict your ability to earn a living, it should
        give you something in return:

The reason for any contract is something in return. The basis for NCA
agreements is so that employers don't have to worry so much about
training their future competition, not because they want to restrict
ones ability to earn a living. In general the NCA is for a fixed period
of time, i.e., one year, and a specific area, i.e., a 50 mile radius
from ones office. How likely do you think it is that the average
employer will agree to pay someone for this period of time after he
quits, or is fired for reason, while he may at the same time be in the
process of establishing his own business or working referral sources to
another provider?

I say go for it. If you can work it into your contract, that's great. I
don't expect you'll see it become an industry standard anytime soon,
however.

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I don't think that any company asking an employee to sign a NCA would
want to keep that employee from working in their chosen field, but
rather to keep people from using the companies resources and reputation
to build a repore with physicians, therapists and other referral
sources, then jumping ship and moving to another company and taking with

them these referral sources. (in essence stealing these resources from
the company that provided them their pay and their livelihood.) I am an

employer that does not require a NCA from my practitioners, but I pay
20% better than any other facility in the area. I do worry though that
one day it may come back and bite me in the ass. I worry more about
trade secrets and referral source theft a great deal, but I also believe

that if I pay a great salary, provide excellent benefits and keep my
employees happy, they won't want to leave me. I hope that I will never
regret this, but I will test the waters for the rest of you.

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Marcus, I have found myself, at one time or another, on both sides of
this discussion so I understand the issue. The article that you posted
states that a noncompete benefits only the company and not the employee
(unless there is a payout to the employee). This is flawed reasoning.
The employee is being paid to do a job that requires the company or
practice owner to provide said employee with the opportunity to meet and
practice with referral sources and patients, and to learn about the P &
O contracts in that community, not to mention other sensitive financial
and business information. As the employer I am also paying you while
you have the opportunity to gather this information. If you leave me
to compete in MY marketplace using information that you gathered while I
was paying you - I believe the employer is getting screwed. To protect
myself as the employer, it i! s fair that I have you sign a noncompete
that encompasses 'my marketplace'. It is not fair to restrict the
employee from working anywhere, just in the marketplace that I have
provided the employee with access to. The other
option for the employee is to put up their own money to buy equipment,
etc., and just come into my market cold and open their own P & O
facility and compete with me right from the start. I have no problem
with that. Just don't milk me for information and then use it against
me.

################

Excellent idea you have floated in the industry, I really appreciate it.

Well I am also tied up with No compete agreement.

I don't know what happens at what time, therefore, your thoughts are
excellent and definitely a win win situation for the practioner.

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I just paid a HUGE settlement to my former employer for
quitting him because he backed me into a wall weeks after i started with
him
to sign a non compete (this article would have REALLY helped me). Later
he
didn't hold up to his part of our agreement so I opened my own office
and he
sued me and the rest is miserable history.

################

My 2¢ worth. . .

Straight out of school, my residency opportunities were limited because
NCOPE had instituted a rule banning NCAs during a residency. After
moving the family 700 miles to a residency site, signing a year lease,
and paying my $1000 fee, the company dropped a NCA in my lap. As a
resident, I wasn’t about to complain to NCOPE. I wanted to be on the
certifed list instead of the blackballed list. As I recall, this
company also forced the techs and secretaries to sign NCAs.

     Here are a few of the ways a NCA can affect employees:

You have to sell your house/break your lease to continue working
Your spouse has to change jobs
Children have to change schools/make new friends
You can no longer live in the area you have grown to love
Costs - $5-10K plus the emotional toll for your family

     or:

You can not work in the O&P field for 1-3 years
Costs - Probably half of your income for this period

If your spouse has a good job, and your children are well into high
school, the employer will know you can’t move easily. You’ve signed a
NCA, and you are making $15K a year less than your colleagues. Somehow,
I can’t see the employer giving you the raise. He knows your situation
too well.

     For the employers out there:

In return for the employee's sacrifice you have assurance that you can
make demands on your employee with relative impunity. There is no union
to complain to, and you can run him into the ground before he will
uproot his family.

With proper management, however, a prospective employee will happily
sign this NCA, and gain confidence in your company at the same time.
You just have to put the employee in a postition that does not cause
them to feel trapped.

thats my 2¢ worth

Marcus Boren, B.Sc., C.P.

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