Can you fight a “without cause” termination in a physician employment contract?
Receiving notice of a without cause termination is obviously extremely stressful for physicians. I am frequently asked if the employer has the right to terminate a physician who is working hard, getting good reviews, etc. Unfortunately, there is usually no contractual way to fight a termination without cause. As the name implies, no cause need be given for a termination of this nature. Occasionally, an argument can be made that the proper notice wasn’t given (e.g., perhaps the contract requires certified mail, return receipt requested for notices, and the physician was simply handed a letter). However, insisting on the legal formalities is only likely to delay the inevitable – the employer will almost certainly correct the mistake and the notice period will begin to run. Nevertheless, sometimes this tactic can delay the process enough to allow the physician to get further along in the process of finding a new position to at least reduce the gap in income that would otherwise occur between the end of this position and starting at a new place.
Of course, physicians can sometimes argue that the termination was actually for an unlawful reason (e.g., discrimination based on race, age, etc.) However, the time to bring a legal action based on this theory is measured in years, so the best use of your time right now is to begin searching for a new position. You will have time to pursue a legal action based on discrimination after you have protected your income.
The reason for “without cause” termination in physician employment contracts
Ideally, the practice of medicine will be a collegial pursuit. Few would argue that a physician’s employer should be able to terminate the physician if he or she just isn’t a “fit” with the rest of the physicians. By the same token, physicians obviously want some flexibility to leave the employer if the physician gets a better opportunity, or if the physician simply isn’t happy with the position. For that reason, unless the physician is in the United States on a J-1 visa, the physician employment contract should have a “without cause” termination provision.
A “without cause” termination in physician employment contracts allows the physician or the employer to terminate employment even though the other party has done nothing wrong. As you can see, “without cause” termination provisions are a dual-edged sword. They give the physician the right to leave for no reason, but they also give the employer the right to give the physician the boot for no reason. Generally, only two major aspects of this provision require the attention of the physician:
- The amount of notice
- And if both parties are entitled to the same notice period.
A reasonable notice period
The notice period (i.e., the time between when the other party is notified of the termination without cause and the date that the termination becomes effective) should give the physician adequate time to seek suitable replacement employment. Although a 90-day notice is very common, I usually try to obtain a 120-day notice when I negotiate physician employment contracts. That gives the physician a much better chance of locking in a new job without a significant break in income, if the employer terminates the physician’s employment.
Fairness of the notice period
It should go without saying that the physician and the employer should both be given the same notice period of a without cause termination of a physician employment contract. Unfortunately, in my years as a physician contract attorney, I have frequently seen provisions where the employer can terminate without cause with a 30-day notice, but the physician has to give a 180-day notice to terminate without cause. When you see one-sided provisions like that, you have to question whether a physician really wants to work for that employer.
Uses of without cause termination provisions in physician contract negotiation
Without cause termination provisions are sometimes used by an experienced physicians’ contract attorney to end physician employment relationships, even though the physician really does believe the other side has breached the physician’s employment contract. I have sent demand letters to employers, setting forth the physician’s claim that the employer has committed one or more breaches. My years of experience as a physician contract lawyer tell me the employer is likely to dispute our claims of a breach. In addition, the physician employment contract may contain a “cure period,” during which the employer can fix the breach. Therefore, since my client is usually fed up with the place by then, I frequently also give notice at the same time of termination without cause. That way, the physician can be sure of a certain termination date of the physician’s employment contract.
You may also be interested in my post about negotiating physician employment agreements.