Something great has happened. The Federal Trade Commission (FTC) struck down the practice of most non-compete clauses in employment contracts. I believe that this is wonderful news and a long time coming, but many may not like this ruling. I think it really depends upon which side of the fence you are on — are you an employer who wants to keep your employees under your thumb, or are you an employee who would like freedom? I think it is obvious from the phrasing of that question which side I am on. To me, it really comes down to freedom.
In the “land of the free,” job mobility can be extremely difficult due to the mandated servitude that is instituted in employment contracts. The concept that you are restricted in where you can work by your previous employer blows me away.
If that employer wants to keep you, provide a positive and rewarding work environment with competitive compensation. If that employer wants to enslave you, then place a number of clauses in your contract that make it painful to quit. Rather than giving positive reinforcement to keep you in the job, threaten extremely negative reinforcement if you leave. Maybe not quite slavery, but pretty close to servitude. I recently had a fellow who was looking at a job opportunity and was concerned that the contract was not long enough. I looked him in the eye and asked, “Do you think the extra pages in a contract are there to protect you?”
Our profession is rife with non-compete clauses. I’ve heard every justification of this — practice secrets, protecting the investment of hiring the physician, etc. It is often referred to as a “restrictive covenant,” as “non-compete” sounds like, well, anticompetition. I believe that competition is always good. It makes a better, less-expensive product. It makes you up your game. If you can’t up your game, maybe you shouldn’t be in the game.
I’ve been in a number of different jobs and have experienced many non-competes. Most are geographical, for example, not being able to practice within 15 miles of the office, not being able to practice in the same county and adjacent county for one or two years, etc. Of course, you can break the non-compete for a considerable sum of money.
The non-competes have not been without consequence to my family and my health. I spent a year away from my family riding out a non-compete. This had a significant effect on my relationships with my wife and daughter. My daughter was starting her junior year of high school, and my wife and I did not think it would be best to move her. So, I joined a practice that was located about a three-hour drive away. I worked during the week and had an apartment and returned home for the weekends. You realize how much you missed being away from your family. Whether it be minor annoyances from school or work, or more significant issues, I was not there to support my wife and daughter. I’m sorry, but telephone calls and text messages just do not cut it. I have a lot of empathy for military families who have it much, much harder than I did. However, they are doing it to protect our nation; I was doing it to satisfy a clause that my previous employer thought was necessary to restrict my freedom for their economic gain.
As a person who had commuted daily on my bicycle to work, I was now commuting in my car, sometimes an hour and a half each way. This took an obvious toll on my health. Rather than getting an hour and a half of biking each day, I was sitting in the car with the stress of navigating traffic.
I always joked that my marriage was perennially on the brink of divorce, but this was no longer a joke. Work had always been a central emphasis in my life, but add a long-distance relationship on top of long hours, and my relationship with my wife and daughter suffered. I had essentially been absent for half of my daughter’s high school experience and left my wife to navigate the daily struggles of high school with my daughter on her own. All of this came to a head on May 27, 2023. I was home for Memorial Day weekend and decided to take a bike ride that I had taken 1,000 times before…
But this time, I was knocked off my bike and robbed of my wallet and phone. A good Samaritan came by and let me use his phone. I called the police, who came by and took my statement. They asked me if I needed to go to the hospital and I told them I thought I was OK.
I rode home on my bike, which was about five miles, and felt the pain in my chest. I had an international trip scheduled the next day and I was worried this was going to screw up my plans. When I got home I tried to lie down, which really hurt, and I thought I had some broken ribs. I relented to my wife’s and daughter’s insistence to go to urgent care to get an X-ray.
The chest X-ray showed four broken ribs and a hemopneumothorax. Things puttered along and then I felt really bad. I saw my heart rate go below 20 and the blood pressure cuff kept trying to find my blood pressure. It felt like the worst vasovagal event I had ever felt. The urgent care doc, a general surgeon, got very excited and I noticed they were slapping defibrillator pads on me and placing me on a hard board. “Shit,” I thought, “I’m trying to die.” After a shot of epinephrine, I came back. They loaded me in an ambulance and got me to a hospital ER. They told me that they needed to intubate me, place a chest tube, and give me blood. I used the cell phone from the surgeon (who saved my life) who rode with me in the ambulance from the urgent care and called my wife. My concern was that she needed to call the organizers of the meeting that I was scheduled to go to the next day and tell them I wasn’t going to make it…
They gave me a paralytic, but I was still aware of what was going on. I tried to move a finger and could not. I remember intubation and the placement of the chest tube, then I was out. I woke up the next day in the ICU, still intubated. They got me extubated and the chest tube was out three days later.
Although this trauma strengthened my relationship with my wife, I do not wish this experience on my worst enemy. The non-compete did not cause this trauma, but it led up to it. Right now, I am on a three-month hiatus to regain my physical and mental health and reconnect with my wife and daughter.
As physicians, we already have a mental health and burnout crisis in our profession. Non-competes add to this. To feel trapped in a job or to endure additional burden in a profession that is already overly burdened, this is bad for our mental health. We must commit to our health. Although non-competes are a small component of the many factors that contribute to the stress of being a physician, their purpose is purely a financial one for the employer. I am not naïve — I know that there are economic considerations in running a practice. However, stop trapping physicians in substandard working environments.
Richard C. Allen MD PhD FACS is an oculoplastic surgeon in Texas. He is the immediate-past-president of the American Society of Ophthalmic Plastic and Reconstructive Surgery. He is the Editor-in-Chief of Orbit and the President-elect for IJCAHPO. Dr. Allen has no financial disclosure.
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