By Darren M. Green, JD, MD Preferred Legal Services
All’s right in the world. That perfect job offer has come in. Euphoria rules the day. Unfortunately many a physician will let their guard down at this happy time and ignore the critical issues and restrictions concerning their rights should it become necessary to terminate the employment relationship. Even the best laid plans can turn sour for any number of reasons, and that’s the wrong time to realize for the first time that your employment agreement unreasonably prohibits you from plying your trade. While non-competition, non-solicitation and similar restrictive covenants are largely creatures of state law - and hence the rules governing such covenants tend to vary from state to state – there are a few general principles to consider and evaluate regarding non-competition provisions before signing on the dotted line.
While physician non-competition restrictions are usually difficult to enforce (and in some states entirely unenforceable), this does not mean you should accept whatever language your new employer proposes in your employment agreement. Defending claims initiated by former employers is expensive and time-consuming, as you’ll need a good (a/k/a/ expensive) litigator to push back. Bear in mind that even if you ultimately prevail in dismissing the claim, it’s entirely possible that your new employer will have revoked your employment offer to avoid undue expense, risk or headache on their end. In such a case, the non-competition provision will have succeeded in restricting your activities even though it was ultimately either not enforceable or not applicable to your new position.
