A recent survey by search agency The Medicus Firm shows steady continuation of the national trend toward employment of physicians. In representing employers and employees, our Georgia physician practice law firm follows physician employment trends and issues. According to the Medicus survey results, the vast majority of physicians hired in the first half of 2015 — nearly 90% — were hired by either hospital systems or group practices.
The Medicus survey also revealed other interesting aspects of the physician employment trend. For example, the survey shows that one aspect of the current employment trend is increased placement in urban and mid-sized communities, compared to recent years. The survey also shows that the top four placement categories (by specialty) during the same time frame were:
- Family Medicine (almost 19%)
- Internal Medicine (11%)
- Ob/Gyn (almost 6%)
- Psychiatrists (5%) and hospitalists (5%)
Where the Current Physician Employment Trend and Employment Law Meet
As many drivers of the trend toward physician employment remain on the horizon, more employment law disputes will involve physicians as plaintiffs. There are many examples:
Discrimination Laws. Physician employees enjoy many of the same protections as any employee under the numerous laws that prohibit discrimination and unlawful retaliation in the work place including, for example, Title VII, The Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and Section 1981. While the specific elements of each such statute and available remedies vary, generally speaking applicability of any such one of these (and similar statutes) will depend upon evidence of adverse employment action by the employer that was substantially motivated by an unlawful animus (e.g., race, gender, pregnancy, ethnicity, nationality, religion) or reprisal for protected activity (e.g., complaining or reporting in good faith of circumstances perceived by the employee to be unlawful). When these statutes are asserted in litigation, the cost to the employer to defend such litigation (which is most often brought in federal court) can be very substantial and, because back pay is often a significant determinant of overall damages, the value of a meritorious claim can be much more significant for the employer than other cases due to the high salary level of most employed physicians. For the physician employee involved in an employment dispute, an awareness of these laws and their remedies is critical to properly evaluate the circumstances and possible legal options.
Non-compete Agreements. The vast majority of physician employment agreements contain a covenant not to compete and/or one or more related covenants (e.g., non-disclosure, non-solicitation, confidentiality, intellectual property protections). When a dispute about such a covenant begins to brew, the typical first question of a business and employment lawyer is: “Is this enforceable”? While the question is obviously understandable, rarely can it be answered with any certainty. The enforceability of restrictive covenants is a matter of State law and must be evaluated ad hoc based on not only the particulars of the agreement in question but also on the parties’ particular circumstances. Most often the enforceability decision is a matter of law for a judge that will often be decided when ruling on the employer’s motion for a temporary injunction or for summary judgment. Further, as Georgia law now authorizes blue-penciling, how the agreement will look following litigation may vary according to the Court’s perception because the optics of the case viewed in its entirety (i.e., the agreement’s details and the parties’ circumstances) may look differently from one judge to another. In many cases, this reality renders unpredictable the enforceability question. Whether looking from the employer’s or the employee’s point of view, the uncertainty that attends whether and how a particular covenant will be enforced warrants careful, realistic planning and strategizing with legal counsel.
If you are a physician employer or employee with questions about the application of any employment law, consult with your attorney. Should you have any questions about this blog post, you may contact our physician practice and employment law firm at (706) 722-7886 (Augusta office) or (404) 685-1662 (Atlanta office), or you may contact us at firstname.lastname@example.org.
Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.