Termination provisions are one of the most overlooked but troublesome components of a contract. The reason these covenants are so troublesome is not only that a CRNA’s old employer may seek to enforce the non-compete; other companies may avoid hiring the CRNA out of concern for being sued. While there is nothing legally requiring a CRNA to sign a non-compete, some companies may not hire someone who refuses to agree to a non-compete. Other companies may be more willing to negotiate. In either situation, it is important for CRNAs to assess their bargaining power.
The details of the non-compete are also important. Some non-competes can be relatively harmless while others can be overly broad and unreasonable. A non-compete may specify whether the CRNA can continue practicing in a specific facility if the company loses the services contract, while other non-competes may treat for-cause termination and voluntary termination differently. These provisions may not be included in the original contract but could be part of the negotiations. A CRNA should find an attorney who can work through the specifics of a contract.
It is also important to point out that not all non-competes are enforceable. If the covenant is only to keep someone from working in a broad geographic region, a court may rule that the clause is unenforceable. If, however, the covenant is being used to protect some aspect of the employer’s business model, such as a trade secret, it is much more likely to be enforced. Unfortunately, to get a court to declare a non-compete clause unenforceable, the CRNA will have to actually go to court, which can be expensive and time-consuming. It is much easier and less expensive to address any specific instances at the time of contracting, rather than relying on a court after the fact.