Doctor Employment Lawyer Blog

Signing an agreement with the heading "Independent Contractor Agreement" does not make you an independent contractor. If you are terminated from a position that was labeled independent contractor but was an employment relationship in practice, you may actually be considered an employee under Illinois law (and federal law as well). Why is this this important? Because as an employee you have rights that are unavailable to independent contractors. For example, discrimination and wage laws do not apply to independent contractors. Furthermore, employees have access to unemployment benefits; independent contractors do not.

How do you know if you were really an employee? It depends. The Illinois Department of Labor, the Illinois Department of Employment Security and the IRS all have slightly different standards in determining whether you were an employee or independent contractor. The most basic question is whether you were free from direction and control of your employer.

Did you perform a job that was unrelated to the purpose of the company for which you worked? Did you make your own schedule? Did you use your own equipment and materials?

This is not an exhaustive list of the questions that the agencies will consider to determine your status, but it's a good place to start. If you were under the control of your employer and treated more like an employee than an independent business, you may be entitled to employment related benefits and your employer may be subjected to a number of penalties.

When a physician signs an employment agreement that includes a non-competition provision, the doctor should be aware that such an agreement will limit his/her opportunity to practice medicine in the future. Even when a radius seems small on paper (i.e. five miles or ten miles), the actual area covered by the agreement may encompass the majority of hospitals or employers in an urban area. Furthermore, many of these provisions exclude you from working for a competitor even when your employment is terminated by the employer without cause.

A non-solicitation provision can have a similar effect. Employers often draft these provisions in a way that makes it difficult to promote yourself when you are forced to secure new employment. If you are restricted from sending announcements or initiating any contact whatsoever with former patients, can you really build a new practice?

If you are negotiating an employment contract with a large institution, it will likely be difficult to negotiate a narrower application of the restrictive covenants. However, this should not deter you from making some effort. At a minimum, you should request that the restrictive covenants be nullified if your employment is terminated without "cause." In addition, you should be careful that "cause" is clearly defined in the agreement so that there is no question as to whether you may promote yourself.