What are the initial steps for a physician who finds that their employer is not performing its obligations under their employment agreement?
Step One: Dust off your contract
Whether a physician is a 1099 contractor or a W-2 employee, if there is a written contract between the parties this is the first document that outlines the parties’ rights. For convenience, the term “employer” will be used here regardless of whether the contractual relationship is as an employee or 1099 contractor.
If there is a separate employment manual or policies and procedures guide provided by the employer, these documents should be reviewed as well for guidance. Search for communications from the employer that might have modified the agreement from the terms of your original agreement. These documents, taken together, will outline the rights, duties and responsibilities of both physician and employer. Without proper documentation, it is impossible to confirm what is owed to the physicians and where their duties and obligations begin and end.
Step Two: What to look for in your contract
Look for the provisions that are of most concern. If it is payment, look at the provisions that apply to payment. Do those provisions outline when payments and how will be made? Do the provisions provide for a confirmation or complaint process, and if so, what is it?
If the concern is shift coverage, look for provisions regarding notice for non-coverage of an assigned shift. Physicians may have negotiated a right to review or audit billing claims related to services that the physician provides.
It is vital to understand what the contract actually commits both the physician and the employer to doing, and not doing. While there may have been a common course of action, failure to continue to behave in that same manner may not actually constitute a breach of the agreement.
Step Three: Preserve your rights
Most contracts have specific provisions requiring notification of the other party of a breach of the contract. Further, there is typically a time for the breaching party to cure the breach. Notice will typically require a writing that specifies the alleged breach and will also specify the appropriate methods of notification. Some notices may be sent via certified mail, others via electronic mail.
In any instance, if there is a breach, the non-breaching party should comply with the terms of the contract in providing notice of a potential breach even if the other party is not following the terms of the agreement. Non-compliance by one party does not, in most instances, excuse the other party from compliance with the terms of the agreement.
Contact your own attorney
A physician’s personal legal counsel can review the agreement in light of the terms of the specific agreement and laws applicable to the employee’s jurisdiction. Sometimes state laws provide additional protection to a physician that may not be familiar to an attorney in another jurisdiction. Understanding the particular nuances of an agreement and local laws may reveal powerful tools that are available to physicians providing services under their employment agreements.
While group efforts can lead to a positive outcome, it is advisable to have individual counsel to explain particular terms, provisions, and assurances that may exist in each agreement. One size does not fit all.
