MedEsthetics magazines offers business education and in-depth coverage of the latest noninvasive cosmetic procedures for physicians and practice managers working in the medical aesthetics industry.
Issue link: https://medesthetics.epubxp.com/i/643539
LEGAL ISSUES 24 MARCH 2016 | Med Esthetics © GETTY IMAGES The agreement must not provide for benefi ts, vacation days, sick leave or personal days. broad. It must be limited in geographic distance and time. In some states, non-compete agreements are unenforceable, therefore it is also necessary to check your local laws. 8. A non-solicitation clause. This restricts the independent contractor from soliciting (a) employees, (b) customers or (c) business opportunities from you for a period of time. The enforceability of these clauses also varies from state to state. 9. If you are in a state that enforces reasonable non- compete and non-solicitation agreements, include a clause outlining penalties for a breach of these provisions. Because most violations occur after the agreement has already been terminated, remedies for a violation of a non-compete and/ or non-solicitation clause would include a temporary restrain- ing order, preliminary injunction and/or permanent injunc- tion. There could also be monetary penalties, commonly referred to as liquidated damages, which set an amount in advance for any violation. Liquidated damage clauses are typically used because the amount of money that the damage has actually caused may be diffi cult or impossible to provide. If the breach occurs during the course of the agreement, an additional penalty would be termination of the contract. 10. A clause relating to the confi dentiality of trade secrets. This will protect any trademarks you own as well as your patient lists. 11. A provision that the independent contractor will defend and indemnify you for acts of their own negligence in which a person gets injured. 5. A provision noting that the independent contractor will not be covered by the practice's workers' compensation insurance and that neither income taxes nor any other payroll- type deductions will be withheld from the contractor's fee. 6. The agreement must specify that the independent contractor is responsible for procuring workers' compensa- tion and liability insurance, and that they are required to provide you with a copy of the policy or proof of insurance. 7. In order to protect your business, there should be a non-compete clause. For this type of clause to be valid, it must be reasonable in scope. For example, preventing an NP from working in a similar capacity within the state of New York for a period of three years after the agreement has terminated will not be enforceable because it is too The agreement must specify that the independent contractor is responsible for procuring workers' compensation and liability insurance. 12. A provision that upon termination of the agreement, all documents, records or materials that the independent contractor may have copies of or access to will be returned to the physician. 13. How disputes will be decided. For instance, do you want to agree to arbitration or use the local court system? 14. Always include an acknowledgement that this is not an employment contract. 15. A legal representation clause acknowledging that each party to the agreement has been advised of its rights to engage independent legal counsel of its own selection in connection with the negotiation, review and execution of this agreement. This clause can help to avoid a claim that the independent contractor signed the agreement under duress or did not know what they were signing. The above list is not exhaustive, and you are free to include other provisions that refl ect the agreement between the parties. However, there are certain provisions that must not be included. Because independent contractors only earn income when they are working, the agreement must not provide for benefi ts, vacation days, sick leave or personal days. It is always recommended that prior to entering into any contractual relationship, you consult with an attorney. Allyson Avila is a partner at the national law fi rm of Wilson Elser Moskowitz Edelman & Dicker, LLP. Contact her at 914.872.7445, allyson.avila@wilsonelser.com.