Forbidden to Engage in 'Outside' Income-Producing Activities

Carolyn Buppert, MSN, JD

Disclosures

March 18, 2019

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Question

A nurse practitioner looking for a new position in primary care has been offered a contract that requires her to agree not to engage in "outside professional activities." The contract says that if she takes on outside activities the practice will own any money made through those activities. She asks, "Is this customary? Should I agree to this?"

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

First, let's think about this from the employer's perspective. The employer doesn't want clinicians to have to run out the door at 4:00 PM to get to another job. But from your point of view, a demand that you agree not to take on any other professional activities or that the employer has a right to any compensation you make on your own time isn't reasonable. You should be able to do what you want on your off hours and reap the benefits of your work.

In this situation, your interests and the employer's interests are at odds. Negotiation is necessary, and, usually, employer and employee can reach a compromise. Clinicians should retain the freedom to do what they want on their own time, and keep any money they make on off hours, while agreeing not to take on jobs that conflict with the hours they agree to devote to their primary employer. For example, if you want to be able to work somewhere else on "off hours," then agree that you will be flexible about your weekday hours at your employer's practice to accommodate last-minute patients who arrive at 5:00 PM, but you want your Saturdays free. Make sure that the statement that you won't be expected to work Saturdays is in your employment agreement.

Usually, employers will agree that employees may lecture at conferences or be active in professional organizations, and keep any compensation earned in that way. Some employers will agree that an employee may take on other clinical work as long as the work isn't competitive with the employer and timing doesn't conflict with the employer's needs. If you know that you want the option of taking on clinical work in addition to the job being offered, discuss that early on. Ask that the prohibition on any outside work be deleted and instead include language like this: Employee agrees not to take on outside professional work that is directly competitive with the practice or that takes place during the hours employee has agreed to devote to employer's patients.

Some contracts specify the days and hours a clinician will be working. Others do not. If hours aren't specified in the employment agreement, it may not be clear to either party what times are "off hours." It makes sense to ask an employer to pin down the days and times the employer expects you to be available so that you can take on other work on off hours. If an employer expects you to be available 24/7, then the employer's compensation package should reward you for being available at all times.

For legal help for nurse practitioners, in small doses, visit my YouTube channel

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