Non-Compete Agreements and clauses are common in Physician Employment Agreements. However, the landscape might be changing due to the recent proposal by the Federal Trade Commission (FTC) to ban all non-compete agreements. In this episode, series regular Jay Reyero joins us as we explore the current state of non-compete agreements. We discuss the implications of the FTC’s proposal, especially as it relates to Physician Employment Agreements, the misconceptions surrounding non-compete enforceability, and essential factors to consider when reviewing an employment agreement.
Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.
Transcript
Intro: [00:00:00] Welcome to Legal 123’s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences. Creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of the Legal 123’s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. Our clients commonly come to us with the latest word on the street that they heard from a friend. This season, Brad, we will talk about stories with a common legal urban legend to them, and we will seek to either prove or disprove the legend. This season’s theme is fake or real.
Brad: Oh yeah, I’m excited. Well, Michael, I don’t know if you know this, but at our firm, we have three core values. Communicate, create, and compete.
Michael: Yeah, Brad, I was with you, and so was Jay when we were developing these many [00:01:00] years ago. Yes, they are important to us. When we started the firm, we actually spent the better part of our first year in practice really trying to develop: What are our core values? And in our minds, the question was, what’s our DNA? What is it about us that we think makes us successful? And let’s identify those things and hold on to them. The ‘communicate’ core value to us was our lesson learned in our path as attorneys: Clients seem to value good communication more than anything. I think they assume that we’re going to provide great legal work, but good communication is highly valued if not the most important thing. The ‘compete’ core value is the kind of the grit element of, we know that things are going to happen and how do we, as a team, respond? And we had shown through [00:02:00] the years that we could – whether it’s something in our professional or personal lives – that we would get back to back and get through things. And then, finally, the ‘create’ core value is just that element of innovation where we are looking for simpler, better ways to do things. One of the proudest things we have is Access+, our subscription billing model, but there are examples up and down the halls here.
Brad: You mean like a lawyer starting a podcast?
Michael: Yeah, yeah. Something like that.
Brad: Something like that. I mean, yeah, that would be creating, competing and communicating.
Michael: Exactly.
Brad: Interesting. Well, in the past show we have discussed the infamous or infamous, I’m not sure what the right word there is, New York chicken parmesan incident. I don’t know if we should go into that anymore.
Michael: Yeah, Brad, I mean, I don’t know, even though it is season 13, I don’t think we should relive how we acted like two 13 year old [00:03:00] boys in the middle of New York with a table full of clients and friends and having an eating contest together, even if I did win.
Brad: I think, you know, you’re much older now. That was a long time ago, Michael, so you’re probably forgetting. I think, if I remember correctly, it was a tie (Audience members, I won). But today’s show reminded me about competition, and some can be good, and some can be bad. For example, would you ever want to eat hot dogs with Joey Chestnut?
Michael: I, for one, would not like to eat hot dogs with Joey Chestnut. He’s a pretty famous person, and I can’t hold up to his standards, but you know that I like context, and we know that someone in the audience might not know who Joey Chestnut is, and he is the all-time winningest hot dog eating champion in the country.
Brad: Yeah, that’s right. Joey, who has eaten as many as 76 [00:04:00] hot dogs and buns during Nathan’s 10-minute hot dog eating contest that happens every July 4th. No other competitor has actually eaten more than 64 and a half (which I thought was funny that they got a half there). And according to USA Today, Joey now does eating contests full time, which sounds wonderful. He’s developed a net worth in excess of four million dollars doing that. Joey defended his title last month. He clinched his 16th career win by scarfing down only 62 franks in 10 minutes. The second-place finisher was not Michael Byrd, ladies and gentlemen. But that second-place finisher did eat a whole 49 hot dogs. I’m just getting a little bit sick to my stomach from just thinking about what’s going on in Joey’s stomach after all those.
Michael: It must not have been good eating conditions if he only got to 62, and I know as much as it might sound great to eat in a contest full time [00:05:00] for a career, it’s pretty disgusting watching what they do to try to wolf all that stuff down. But while we were sitting here, I did check with Siri, Brad, to see if I could find the world record for the fastest to eat chicken parmigiana, and I was sad because I expected to see my picture.
Brad: So when you saw mine, did it throw you off?
Michael: I couldn’t find anything, it was so weird. But I did find that a competitive eater out of the United Kingdom has the record for the most chicken nuggets eaten in a minute. Her name is Leah Shutkever. I don’t know if that’s how you say it. Forgive us, Leah. I’m going to ask you and Jay, who’s sitting nicely in the background, if you have a guess as to how many chicken nuggets Leah ate in one minute. You go first, Brad.
Brad: Sorry, Leah.
Michael: I’m going to ask you and Jay, who’s sitting nicely in the background, if you have a guess as to how many chicken nuggets Leah ate in one minute. You go first, Brad.
Brad: Is it like the price is right where I can go under? If I go a million, that’s too high, and if I say one, it’s too low?
Michael: If you go over, you’re kicked off the rest of the episode.
Brad: Oh, wait, [00:06:00] no, no, Riley, don’t listen to him. Okay, I’m gonna go in one minute, 100?
Michael: Okay, you’re so far over. I have to say that for Jay’s benefit. All right, Jay.
Jay: I’m going to guess 70.
Michael: Believe it or not, it’s 19.
Brad: Oh.
Michael: That seems like such a reasonable amount, but the amount before that was like 10. But remember, this is one minute.
Brad: Okay, yeah. You know, Joey’s throwing me off so much.
Michael: I know, I know, It’s weird. Unless, of course, Siri’s wrong, which it is possible.
Brad: Was it Siri or Chat GPT? Audience members, go back to the episode that we started this season with to understand the analysis on that one.
Michael: Yeah, we do leave room. If you want to fact check me, go ahead and Google that.
Brad: okay.
Michael: Well, I do not think it’s a coincidence, Brad, that you brought up competition today because Jay, who’s joining us, and you’ve just heard [00:07:00] is one of, if not the most competitive person here at the firm. And you wouldn’t know that if you met Jay, and there are clients out there that have known Jay for years that are thinking, ‘No, there’s no way that smart guy is so, so nice.’ Well, let me tell you when he was a young associate and he was put in charge of our old firm’s kind of recreational basketball team, intramural basketball team. And we showed up, and Jay started barking orders at everyone. I was like, ‘Who is this guy?’ It was a new perspective for Jay.
Jay: Yeah, I came in guns blazing there, just telling everybody what to do, and I will neither deny nor confirm that I might have left some people off of the email list to gather up the game based on skill set ability [00:08:00], but I’ve mellowed, I’ve mellowed a lot. Now I’m more of the silent assassin type. If you guys remember, we did bowling for the firm anniversary, and we found out about it maybe three weeks before. I love bowling, but I hadn’t bowled in years. And I convinced my wife to get our kids out for a nice family afternoon of bowling like a week before, just, you know, to knock some of the rust off. So basically, they were joining me for my bowling practice, but I will have to say I still have the trophy in my office from that afternoon, so it paid off. But yeah, I’ve mellowed out a lot. I don’t coach my kids’ soccer.
Brad: I’ll just say this: One of our associates, at the time (I guess he still is), 6’7″. And I remember him saying, ‘Jay really bossed me around a lot.’
Jay: Hustle, he’s got a hustle. He’s got a rebound. I didn’t put them out there for, for fun.
Michael: Oh my goodness. Well, I’m sure we could spend the rest of the episode [00:09:00] talking about the many examples of how competitive we all are, but we probably should get into today’s story.
Brad: Yeah, and Jay, I think you have today’s fake or real story, so let’s get started.
Jay: Yeah, so today’s main character, we’re gonna call Dr. Melanie. Dr. Melanie’s a successful surgeon up in the northeast, maybe around the New York area, and she had an opportunity to work with a childhood friend, a fellow surgeon named Dr. Jake, and this was back in our hometown in the south, let’s say somewhere in Alabama.
Brad: Ah gosh. You know, Jay, I’m glad you’re on this episode. And for those audience members who don’t know (and Michael Byrd, who does not know), Jay is referencing the movie Sweet Home Alabama, which I’m really excited about because that’s a 2002 movie, and I know Michael always makes fun of me because I’m always stuck in the ’80s, apparently.
Jay: Hey Brad, remember Michael banned movie talk, so that’s about all we can talk about.
Brad: well, yeah, [00:10:00] Riley, just cut anything Michael says after this.
Michael: I don’t know whether to object to the movie talk or make fun of you both for bringing a rom com into the mix. At least before you would always go sci fi. Even if I did shed a little tear at the end for Reese Witherspoon and her love interest Josh Lucas.
Brad: Yeah, no spoilers though.
Michael: Oh.
Jay: Spoiler alert. Well, so Dr. Jake had given Dr. Melanie a contract to consider, and Dr. Melanie wanted me to review and help negotiate it. So, the first thing that I did is I hopped on the call with her and had the Plan A, Plan B discussion for context before I actually jumped into the document to review.
Brad: Yeah, and Michael, we’ve talked about this before in other shows about Plan A and Plan B, but for our audience who may be hearing this for the first time since Jay used the word that you love so much, ‘context’, maybe you can give some context on what Plan A and Plan B mean.
Michael: Yeah, Plan A and Plan B are how we center the discussion. So, a contract is a piece of paper with words and it really comes to life if you understand, in this case, our client, what are they trying to accomplish? The Plan A, Plan B exercise is where we want to understand if this goes perfectly, what does this look like? That’s kind of the Plan A. And then the Plan B is, if it doesn’t go perfectly, you know, what are the contingencies? And then you can see, does the contract align with that or not? That helps identify kind of issues that you may need to deal with in contract negotiations.
Brad: Yeah, and for audience members who didn’t catch on, I mean, that’s so important. That’s why Jay started there because it does help us determine those next steps. So, Jay, what did you learn from Dr. Molina when you actually had a chance to talk to her about our Plan A, Plan B?
Jay: Yeah, so I learned that she was wanting to move back home primarily to be closer to family. That was the whole point of the move, and really just even looking at the opportunity, and this was a permanent move too. There [00:12:00] wasn’t a short-term type issue. It was, ‘I want to move home. I want to be there.’ So, it was very, very important for her to be there and to stay there long-term and completely relocate. Again, she was a successful surgeon up in the Northeast to completely relocate and establish roots again back home.
Brad: So, did she express any particular questions or concerns about the contract?
Jay: Not really. This was, again, you go back to Dr. Melanie and Dr. Jake had been having discussions for several months, and they had this longstanding relationship. And so, there’s a built-in level of trust there between the two. And really, Dr. Melanie felt that the contract contained the things that they had discussed, and at the end of the day, what I got and kind of what she said without really saying it is that she was really just checking the box of having an attorney review it.
Michael: Yeah, and it’s not uncommon when you have friends or people that have that trusting relationship that you just mentioned, Jay, to be able to [00:13:00] get there. Now, what can go wrong sometimes is, you know, they don’t really talk about the things they need to talk about or that they know they need to talk about, but I’m guessing here the review was pretty straightforward.
Jay: I mean, not exactly. So, I mean, open it up, and it’s a fairly standard physician employment agreement. I go through many of the terms, and you know, for the most part, yeah, they’re balanced and fair things that I expected to see. But then as I got through kind of to the middle of the document, I found one area that was really alarming that Dr. Melanie didn’t mention or didn’t raise an issue. But it was clearly right there in the middle of the agreement, and that was there’s a non-compete. And not only was there a non-compete, but there’s actually a decent-sized radius to consider. So, I was shocked that that wasn’t something that was raised or talked about when she mentioned it.
Brad: Yeah, that’s pretty scary. I mean, she’s moving back to her, I guess I’ll say, ‘Sweet Home Alabama.’ Now, understanding that [00:14:00], Michael, going back to Plan A, Plan B, talk about the interplay that non-competes have with that analysis.
Michael: Yeah, first, Riley, put your finger near the microphone for Brad. If he starts threatening to sing again, we’re gonna have to shut this thing down.
Brad: *Sings* ’Sweet Home Alabama’
Michael: Oh no, this is getting bad. Yeah, as you mentioned, Brad, we’ve talked about this on prior episodes. And if your Plan A is to move home and you want to be home, the non-compete obviously has a direct impact on that. So, what’s your Plan B? Well, if this contract doesn’t work, you still want to be home, but you won’t be with this practice, and this non-compete would inhibit that. And so, I would agree, this is really surprising that in the course of this trusting relationship and your conversation with her, she didn’t mention that.
Jay: Yeah, and all the same thoughts that I had. And so I knew once I had [00:15:00] looked through the rest of the agreement that the non-compete was really going to be the primary focus of my conversation with Dr. Melanie. And, again, she had expressed the move back home was going to be permanent. And then here’s this non-compete that, you know, if the arrangement didn’t work out, it was going to prohibit her from being within a good-sized area away from home. And so I knew this was going to be really the focus of the conversation and, and not so much any of the other things since they did kind of align with what her expectations were.
Brad: Yeah, this really does not sound like an ideal situation for her, especially in light of the fact she’s moving home to be with her family. What did you say when you had that conversation, and what were her thoughts about the non-compete? I guess you had to bring her attention to it.
Jay: Yeah, I started with the conversation. ‘Hey, I went through the agreement and I noticed that there was a non-compete. Just wanted to see what your thoughts were,’ just to hear if she had considered it or had any thoughts. And she basically said, ‘Oh yeah, she saw it. She just wasn’t worried about it.’
Brad: Why? [00:16:00]
Jay: Yeah, that’s what I was wondering. She said that she had heard that non-competes were banned and non-enforceable, and so, that’s obviously where I spent the rest of the conversation talking through that particular statement.
Michael: Yeah. This is actually a modern evolution of an old conversation. So, for years, we would talk – in fact, we’ve talked about this on other episodes – locker room talk is non-competes are not enforceable.
Brad: Yes.
Michael: And, so they have this misconception based on what other doctors tell them about the law. Well, the federal government decided to complicate matters. So, the Federal Trade Commission, the FTC, issued a proposal earlier. I think it was just months ago, earlier this year, that proposed banning non-competes across the country. And so, we have gotten so many phone calls from [00:17:00] existing clients or situations like this where there’s this assumption that non-competes are no longer enforceable.
Brad: Yeah, and for those who don’t know, the Federal Trade Commission, or as Michael called it, the FTC, is an independent agency of the United States government whose principal mission actually is the enforcement of civil antitrust laws and the promotion of consumer protection. So that’s its purpose in life. But, as Michael was mentioning, for those who didn’t know, in January of 2023, the FTC did propose a new rule that would basically ban employers from imposing any non-competes on their workers.
Michael: Yeah. Well, that was a much fancier way to say what I said, Brad. You’re using big words over there, but yeah, that’s the kind of lay of the land of what we are seeing in 2023. But let’s pause, let’s go into commercial. And when we come back, first, we need to answer the [00:18:00] question: fake or real? Has the FTC banned all non-competes? And then unpack some considerations that go with that.
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Brad: Welcome back to Legal 123s. I’m your host, Brad Adatto, with my co-host Michael Byrd. We’re still sitting here with series regular Jay Reyero. Now, Michael, this season’s theme is ‘fake or real.’ And we have a big question that everyone wants the answer to.
Michael: Yeah, I mean, we [00:19:00] have a rom-com themed story today, although I’m really disappointed that Jay didn’t bring the ‘rom’ into the story. Brad’s been supplying the ‘com’ with his singing.
Brad: Award-winning singing is what I heard.
Michael: Yes, Brad. The story today is the idea of this doctor, had a practice in New York, going home to Alabama, joining a practice with a friend, Dr. Jake, and there’s a trusting relationship and all is great, except when Jay looks at the contract, there’s a non-compete that Dr. Melanie didn’t mention. So what Jay came to find out is she thought non-competes were banned, so she didn’t worry about it. And what we talked about just before the break is that she was relying on the announcement from the FTC that all non-competes should be banned, the proposed rule. But before we answer the question, Jay, how [00:20:00] do states throughout the country view non-competes before the FTC proposal, especially as it relates to doctors?
Jay: Well, as we always like to say, it’s truly state-dependent. So every state’s going to be different, and they’re going to have different variations of their non-compete laws. We can kind of break them down into three different buckets. So, on one end of the spectrum, they’re not enforceable by law. California and Colorado are examples where the physician employment non-competes are going to be non-enforceable. On the other end of the spectrum, we have those that are enforceable by law. States like New York and North Carolina are going to be examples of those states. And then we, of course, have the ones that are in between where they’re enforceable, but we have some strings to attach to them. Great examples are Texas, where it’s enforceable against a physician, but there are very specific requirements that are set out by statute that the non-compete has to meet, one of which is that it has to contain a right for a [00:21:00] buyout of the covenant. So, we have those three different buckets, that spectrum, if you will, and the states will fall into the various different buckets, but it’s different all across the country.
Brad: Yeah, and I think the first big takeaway from Jay’s perspective, as he was describing, is all states dislike non-competes. It just depends on how far they’ll push it from the factors. And another example of taking that to a different level is the state of Massachusetts, where they really severely restricted an employer from enforcing non-competes. So, again, it’s going to be allowed in their state. The Massachusetts Non-Compete Act makes it really hard for employees to have a non-compete enforced at all, although they can have it. Not only must the non-compete be part of a written agreement in Massachusetts, but it has to say that the employee has a right to get an attorney. The employee has a right to have basically 10 days [00:22:00] before or after they sign it to basically get out of it if they want to. The Act also requires non-compete agreements to have fair and reasonable consideration, independent of the continued employment, along with complying with reasonable time and geographic restrictions, which is most states have that. But the non-compete also must protect legitimate business interests. You can’t throw in the kitchen sink, basically, and it must be consistent with what they deem public policy. But this is the part, you know, all that’s kind of somewhat normal in a lot of different states, audience members, but understand where it really shifted and it’s the most notable is they have something called included that employment has an obligation to include a garden leave provision in the non-compete.
Michael: Well, that sounds so pleasant, Brad. Tell us what a garden leave provision is.
Brad: Apparently, it’s about doing the garden when you have so much time in your gardening.
Michael: Oh.
Brad: Yeah, but in context perspective, the garden leave [00:23:00] clause is a provision requiring an employer to pay an employee post-employment. So they’re not working for you anymore, and during that restricted time frame, you still have to pay them if you want to enforce that non-compete. So what does that look like? Well, in Massachusetts, they basically said you need to go back and look at the highest amount of money they earned and then pay them 50% of what they were earning during that time. And you just prorate it during that restricted covenant, meaning that if you want someone not to work for you and you’re paying them a hundred thousand dollars, and you want 12 months, you’re paying them fifty thousand dollars to sit around and do gardening. I don’t know, Jay, I think this should actually be called like the movie provision or maybe the gaming provision. I don’t know if people even garden anymore. But consequently, as you can tell, if other states start seeing this being fine, you can have a non-compete, but you have to have a video game provision or a movie provision or gardening provision as part of it.
Michael: Yeah. and probably we could go on and on talking about the nuances on a state by state basis, but [00:24:00] I think we’re ready. I’m ready to hear the answer. So Jay, fake or real? The FTC has banned all non-competes.
Jay: The answer is: Fake, for right now. So yeah, Brad mentioned the rule being proposed back in January of this year, but there’s more to the process before it becomes a law. What typically happens is the federal government agency will pass a proposal and say, ‘This is what we’re proposing,’ and then they ask for the public to submit comments for a certain period of time. And that’s what happened here. So the comment period was earlier this year, and then the period closes, and then the government kind of takes the proposal, looks at all the comments, and then they use that to develop a final rule that is then voted on. The period for comments closed, and all the comments came in. There was, as you can imagine, a significant number of comments that came in, and so the FTC now has to take the proposed rules, take the comments, evaluate it, develop the final rule, and vote on it. Well, recently, word came down that the FTC isn’t expected to actually vote on a final version of the rule that they create until April of 2024. So, at this point, nothing has changed. The FTC has not banned non-competes. They haven’t done anything, and we’re still about a year away from finding out what the actual final rule will be.
Brad: Yeah, and Michael, the follow-up question I think every audience member probably wants to know is assuming the FTC does, in fact, ban all non-competes, is that the end of the story?
Michael: No, actually, it’s gonna be a massive controversy because non-competes, as we’ve talked about on the show, are state-driven. So a federal agency passing a sweeping law that affects and overrides state law, as we learned in law school, is a big deal. There’s a lot of stuff in the Constitution about state laws and state rights so there will be a lot of litigation, fighting over whether or not the FTC even has the authority to make this particular change to the law.
Brad: Yeah, great point. And I’m glad you brought the Constitution in since you were there when they signed it. Now, and since we know the answer is fake for now, when you find yourself in a state where non-competes are enforceable, what are some of the common essential requirements that at least that state must meet?
Michael: Kind of thematically, the states look at whether the physician got something of value to agree to the non-compete. Now, this can be really tricky. So in some states, it might be a bonus, like here’s a $10,000 bonus in exchange for agreeing to the non-compete. And in some states, that’s not allowed, like Texas, that would actually make the non-compete invalid. What tends to work in most states is if you, the physician, are getting to receive confidential information, the secret sauce of the business, then that can be valid as something that the doctor gets, and as a result, they’re going to give a non-compete. And then from there, all the states kind of have this reasonableness on the restrictions kind of standard. And what you tend to see is it needs to be reasonable on the amount of time. So how long is the non-compete in place? You tend to see anywhere from one to two years. If you start getting outside of two years in most states, that’s going to be problematic. The geographic area, you know, if you have a non-compete that covers the entire country, that’s probably going to be unenforceable in most states, if not all states. And so then the third is what activities are you restricting? If you have, for example, a spine surgeon that’s restricted from practicing medicine at all, is that going to be too broad of a restriction, or do they just have to be restricted from doing spine surgery?
Brad: Yeah. All good points. So Jay, given that the FTC has not, at this moment in time, banned non-competes, what ended up happening with Dr. Melanie?
Jay: Well, I wish this episode were to come out then because I could have just had to listen to this, because I basically had the exact same conversation that we all just had here, explaining the state of things on the FTC and the process and how nothing’s really changed. So, really disproving the myth that she was relying upon. And then, you know, talking with her, she was actually heading to a state where non-competes were enforceable. And so, we had the in-depth discussion that Michael just talked about how they view it and the things that you have to consider and the risks. And so, we had that very in-depth conversation really about Plan A and Plan B and how the non-compete were in conflict. Ultimately, she understood, and she was able to talk with her good friend, Dr. Jake, and negotiate its removal because of their relationship and trust, and it ended up working out for her.
Brad: Was there a song played at the end?
Jay: Yeah, there was a song, there was a nice dance in a bar in the middle of a thunderstorm. It was beautiful.
Brad: Here comes the ‘rom’. All right, Jay, final thoughts for our audience here.
Jay: Yeah, key takeaway is nothing has changed from the FTC ruling, so it’s something to keep an eye on, and even then, as Michael said, there’s still going to be a lot of unknowns, but you still have to now just focus on your state rules. In Dr. Melanie’s case, if you’re an employee being asked to agree to a non-compete, you just can’t simply rely on the ‘they’re not enforceable’ argument that you may hear from a friend or that people will say. You really have to understand how that state that you’re going to really handles non-competes, and that’ll help you make a better decision from a Plan A, Plan B perspective.
Brad: Michael, your final thoughts?
Michael: Yeah, I mean, one thing to watch is kind of a ripple effect of the FTC, or it seems like that is whether the states start taking their own action. We’re seeing New York that’s trying to ban non-competes. We’ve seen it in other states, and so I will be curious to see if there’s momentum or movement towards banning non-competes that goes at the state level, which is going to be much more survivable if that happens. There will be less litigation. And then the final thing is this: if you’re an employer and you’re looking at it to understand that there’s more to it. We’ve talked about this in prior episodes, that there’s more to it than just having language that says you can’t compete. Enforcement of these is difficult. They’re expensive, both in terms of money and time commitment and emotional commitment. And so there are a lot of variables that come into play when you’re looking at enforcing one of these.
Brad: Yeah, all good points. Well, audience members, that’s all the time we have today. Sorry, we can’t sing Sweet Home Alabama for you, but next Wednesday we will continue our quest to determine if a legal myth is fake or real when we examine fake or real: Can CPOM affect the business structure of my med spa?
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