Issue link: https://www.massageandbodyworkdigital.com/i/70551
BUSINESS SIDE They are illegal altogether in some states, and some states narrowly restrict the circumstances to which they may be applied. The attitude of employers who require noncompete agreements is that they have paid for advertising, trained employees, and provided employees with clients, and therefore don't want their staff members to go elsewhere and take clients with them. A noncompete agreement usually states that, should you leave an employer, you will not perform massage within a certain number of miles of the current business for a certain period of time after your termination from the current business, and that you will not contact clients of the current business. They are often required of employees and independent contractors alike. According to Dale Atkinson, general counsel to the Federation of State Massage Therapy Boards, as well as executive director and general counsel to the Federation of Associations of Regulatory Boards, noncompete agreements must be carefully drafted, and take into consideration the time period and scope of limiting one's ability to pursue their chosen profession. "While courts are reluctant to enforce such limitations of employment, noncompete agreements of certain corporate-level executive positions may be justified based on access to proprietary information. Massage therapists should be wary of employers seeking signed noncompete agreements as a condition of employment, as the ultimate determination of who provides services lies with the consumer," Atkinson says. Now there's the key phrase: "The ultimate determination of who provides service lies with the consumer." For the past decade, I've personally utilized, on average, a dozen independent contractors in my clinic at any given time. I've never asked for a noncompete agreement, and I never will. I am aware that if a therapist leaves to take another job or go out on his own, a certain number of clients will go with him. People get attached to their massage therapists. My own philosophy is that a client who prefers to stay with a therapist is not going to be happy with me as a business owner for trying to keep him away from that therapist. On the few occasions that therapists have left me to start their own businesses, I have willingly given their contact information to former clients who want to follow them. It hasn't hurt my business. There are enough aching bodies and stressed-out people to go around, and again, I don't own the client. People have the right to choose who they'd like to receive services from, no matter how much money you may have spent advertising to get them in your door. As a worker, if you have left an employment situation to go elsewhere or start your own business, it's unethical to steal client files and contact information from your employer—whether there was a noncompete agreement or not. However, it is not unethical—or illegal—to advertise your new circumstances. You can get the word out with some ads (and don't overlook the opportunity for a free press release) that state, "Susan Smith, formerly of The Spa on Main Street, is now in private practice at Green Acres Massage Therapy." That's the best way to handle it. Notes 1. Internal Revenue Service, "Independent Contractor (Self- Employed) or Employee," accessed June 2012, www.irs. gov/businesses/small/article/0,,id=99921,00.html. 2. Small Business Administration, "Independent Contractors vs. Employees," accessed June 2012, www.sba.gov/ content/independent-contractors-vs-employees. Laura Allen is the author of A Massage Therapist's Guide to Business (Lippincott Williams & Wilkins, 2011), Plain & Simple Guide to Therapeutic Massage & Bodywork Examinations (Lippincott Williams & Wilkins, 2009), and One Year to a Successful Massage Therapy Practice (Lippincott Williams & Wilkins, 2008). Allen is the owner of THERA-SSAGE, a continuing education facility and alternative wellness clinic with more than a dozen practitioners. Contact her at therassage@bellsouth.net. Celebrate ABMP's 25th anniversary and you may win a refund on your membership. ABMP.com. 29