Why pals can be a problem for departing doctors
Though I’ve covered employment contract law from a number of different points of view in previous columns, I recently realized that there’s a key element I’ve missed thus far—one that’s becoming increasingly relevant as practices (and their teams) continue to grow: employee solicitation.
When veterinary practice owners consider noncompete agreements, they tend to think of language designed to protect them from departing doctors working in direct competition with them. However, what happens if a departing associate has built strong personal relationships with veterinary team members at your practice? Won’t you be crippled if she hires your former team members or simply convinces them to seek positions with her new employer?
The injury to a practice suffering this sort of exodus can be severe for two reasons. First, every employee, from DVM to receptionist, has his or her own following among the clientele of any clinic. I know that at my main veterinary practice, many clients would be far more disappointed to see our morning receptionist quit than to learn that one of the doctors—including yours truly—had left the team.
Second, the simultaneous departure of multiple staff members would not go unnoticed by clients. They’d likely sense internal strife and perhaps want to transfer their records elsewhere once several familiar faces disappeared.
Practices can be particularly prone to this injury if a given client has already considered switching practices for any number of reasons (better location, more convenient hours, impressive curb appeal, and so on) or if the client’s only preference for the practice stems from a fondness for Suzy at the front desk. Suzy’s following one of the associates out the door could be all it takes to lose that client.
A closer look at the clause
Many associate employment contracts contain language dictating that a departing doctor may not “chase” or even “reach out” to her former employer’s clients. These terms tend to be enforceable, though it depends on their reasonableness and the degree of difficulty an employer might have in proving a breach. But preventing a departing veterinarian from contacting and enticing former coworkers to follow her lead presents a number of legal issues that aren’t included in client solicitation prohibitions.
Let’s look at a typical employee nonsolicitation clause:
Associate agrees that for a period of two years after leaving employment with us, she will not directly or indirectly recruit, solicit, induce or interfere with our employment of any employee who worked for us within the 90 days prior to the associate leaving our employment.
Now, suppose you’re an associate with 10 years of experience and you decide to quit your longtime employer to open or buy a hospital just outside the noncompete radius described elsewhere in your employment contract. After hearing of your plans, a technician who’s worked with you for years says, “When you leave, Doc, I’m outta here too.”
What happens next is critical.
If you’ve always liked that tech, your first inclination would be to say, “That’s great! You’ve got a job at my place—same money and everything!” However, that first inclination would be a big mistake. Why? Look closely at your employment agreement, specifically where it defines the term solicit.
‘Solicit’ means any communication or advertising directed intentionally to specific individuals for the purpose of obtaining their employment (excluding mass advertising or mass employment listings).
Back to the scenario above: What communication is permitted when it’s the coworker who comes to you for a job? The answer is far from clear, and the language must be scrupulously interpreted by any veterinarian who hopes to hire a coworker or former coworker.
Public policy counterpoint
Let’s assume that when your old technician pal mentioned he wanted to work for you, you wisely didn’t respond in any way—but you do end up hiring him after you leave.
Your former employer seeks a temporary restraining order in an effort to prevent your chum from joining your new clinic. The deciding judge faces this dilemma: On the one hand, your former employer spent significant time and energy recruiting and training that technician. Courts recognize that reality and are inclined to discourage the practice of “employee raiding.” It seems cheap and sneaky.
On the other hand, this is America. Shouldn’t disenchanted workers be allowed to work wherever they discover a desirable open position? If a job becomes available with better pay or a more comfortable work environment, shouldn’t they be free to avail themselves of that opportunity?
And there’s still the matter of the written contractual promise that you, the departing doctor, made when you took the original job in the first place. Should that promise be discarded in the interest of providing freedom of employment to the technician?
So what are we all to do?
The example language above offers several hints as to how veterinarian employers and employees should conduct themselves when caught in the crosshairs of an employee nonsolicitation clause.
Practice owners and managers: When drafting an employee nonsolicitation clause, don’t simply prohibit the employment of former coworkers, as that won’t be enforceable. Such language is considered to conflict with public policy by severely impacting the freedom of workers to choose their workplace.
Associates: If you intend to leave an employer, adopt a code of silence regarding details. It’s nobody’s business, and the more you talk about it, the more it smells like “solicitation talk.” This silence applies to social media as well. If a former coworker applies for a job with you, consider having them sign a document stating that they sought you out and were never contacted in any way by you (or anyone acting on your behalf) with respect to the available position.
A thoughtfully considered approach on both sides—by both the practice owner and the departing doctor—will help keep everyone out of a painful legal mess when it comes time to part ways.