Physicians often have medical interests other than clinical practice. A restrictive employment agreement could quash those endeavors. Physician employment agreements play an integral role in establishing the legal, financial, and operational structure of the relationship between employer and physician/employee.
One clause of particular interest to many physicians is the clause defining what a physician can and cannot do outside of providing medical services on behalf of their employer—meaning, can the physician engage in such outside activities as moonlighting, volunteering, or serving as an expert witness? Moreover, if income is generated from these outside activities, who does that income belong to—the physician or the employer?
These questions should be clearly answered in the employment agreement. And if the answers in the employment agreement do not mirror the physician’s wishes, then these terms should be negotiated with the employer and memorialized in the employment agreement.
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The first question is whether the physician is even permitted under their employment agreement to participate in activities or perform services outside of employment. Some employers prohibit engagement in outside activities and services altogether, while other employers permit certain activities that do not interfere with the physician’s day-to-day responsibilities. Physicians should be aware of requirements that give the employer the right to approve or reject outside activities. If the physician wants to be able to engage in moonlighting, expert witness consultations and testimony, speaking opportunities, volunteer efforts, teaching, research, or publishing, the physician’s desired activities should be specifically identified in the employment agreement as permitted activities.
For example: Dr. A was joining a medical practice and was presented with the group’s template employment agreement. The draft agreement precluded Dr. A from participating in any medically related outside activities. In the past, Dr. A had served as a volunteer doctor for the local marathon, a medical expert witness, and was a frequent paid speaker at conferences. For Dr. A, a prohibition on outside medical activities did not align with his interests. With minimal discussion, the practice permitted Dr. A to identify the outside activities that he could conduct without violating his employment agreement:
If a physician is permitted to engage in outside activities or services, the second question is whether income generated from such activities belongs to the physician or the employer. This often is a topic of negotiation. Physician and employer frequently do not see eye to eye on this issue. Physicians, on the one hand, often view the income generated from permitted outside activities to be separate and apart from his or her services on behalf of the employer, and thus are outside the reach of the practice. This position is strengthened if the activity occurs on the physician’s own time and outside of the employer’s hours of operation. Employers, on the other hand, often view income from outside activities as part of the employment relationship with the physician. Some employers are of the belief that the physician would not have had the opportunity to participate in the outside activity but for the physician’s employment with the particular employer.
Dr. A’s employer felt that it already was conceding by allowing Dr. A to engage in outside activities and insisted that any payment received by him for these services should be remitted to the practice. Dr. A agreed to this and negotiated for the outside activity monies to be included in his collection amounts, which was a factor in calculating Dr. A’s compensation: