Page 12 - Mecklenburg_Medicine_March-2018

Should You Compete
With a Non-Compete?

By John R. Allbert, MD, and John Buric, Esq.

W hen I first arrived in Charlotte 30 years ago, I soon Making the decision to move forward can be daunting. Even when
realized that many of the physicians I knew had your case is strong, your former employer may threaten to force
switched practices at some point in their career. you to spend excessive amounts of money on legal fees or force
This also is common among bankers, accountants you to move out of town. I have spoken with physicians who have
gone through this in the past, and they compare it to going through
and, particularly, lawyers. Individuals had their own reason to switch a divorce. Things can be said with the intent of intimidating and
creating fear. My advice is to not allow yourself to get angry. It is
companies or practices, but from my perspective, it usually boiled down simply a strategy and should not be taken personally.

to a mismatch in practice style, a desire for a cultural change, or more I hear from many individuals who want more autonomy or are
dissatisfied with future compensation options, and others who are
likely than not, an opportunity to earn more income. tired of certain responsibilities and just want to focus on taking
care of patients. No matter your concern, I want to encourage you
Twelve years ago, I made the decision to make a career change. I to look seriously at your options and do what is best for you and
your family, not only for now but for the future. Before you do
always had planned to go into private practice, but making such an anything, meet with an attorney who has experience in winning and
not just negotiating a settlement. Develop a strategy that you both
Twelve years ago, I important decision sometimes agree on before you resign from your position. I know my decision
can be daunting. Unfortunately, to move beyond legal threats to pursue my goals was one of the best
decisions I ever made.
made the decision I had signed a contract with
to make a career a non-compete clause. I NATIONAL HEALTH &
change. I always questioned its validity and WELLNESS OBSERVANCES
consulted a couple of attorneys
MARCH 2018
had planned to go for advice. The first one I met
into private practice, with recommended I buy out American Red Cross Month
but making such an my non-complete as a way of Athletic Training Month
important decision
sometimes can be saving face for everyone. He Brain Injury Awareness Month
daunting. stated, “This is what really Colorectal Awareness Month
everyone does.” This option Developmental Disabilities Awareness Month
did not appeal to me since I
Eye Donor Month
felt strongly I had a very strong Hemophilia Month
case. I met with John Buric
Kidney Month
and we developed a plan before Nutrition Month
Save Your Vision Month
I turned in my resignation. First, Buric advised me that in order Workplace Eye Health and Safety Month

for a non-compete clause to be enforced, it must fulfill ALL of the March 1-6: Aplastic Anemia and MDS Week
March 2-9: Sleep Awareness Week
following five criteria: March 5-9: School Breakfast Week

• It must be in writing and signed by the employee. March 11-17: Pulmonary Rehabilitation Week
March 14: Kick Butts Day
• It must be exchanged for a valid consideration, (I did not feel I was
March 18-24: Poison Prevention Week
compensated adequately enough to sign the non-compete). March 20: Native HIV/AIDS Awareness Day

• It must be reasonable as to time. March 27: American Diabetes Alert Day

• It must be reasonable to geographical territory, (long duration and

narrow territory or similarly short duration and larger territory often

is reasonable).

• It must be narrowly tailored to protect a legitimate business interest

and not in violation of public policy (in my example, as a maternal-

fetal medicine specialist, the community may be harmed if I had to

leave the area).

Buric stated our courts recognize that a client-based restriction also

can be reasonable in lieu of a territorial restriction. Any non-compete

that prohibits the employee from “directly or indirectly” competing

will 99 percent of the time be declared unenforceable. Similarly, if

the non-compete prohibits all employment by a competitor (including

employment in a position unrelated to the position the employee held

with his former competitor), it is facially unenforceable.

12 | March 2018 • Mecklenburg Medicine