Orthotown May 2019 - 47

she did leave, she gave only two weeks' notice. Because of the
backlog created by the short notice, she was required to reimburse
her former boss for the locum tenens dentist he hired so patients
wouldn't have to wait too long.
There are five categories that may affect discharge of an employee.
Consult with your attorney to see if any of them, or a combination,
could be relevant to you.
1. At-will. In most states, employees are considered at-will, in
that they can be let go at any time for any reason and the
employer is not required to give a reason. (Conversely, the
employee can leave at any time, as well.) This is in the best
interest of the employer; an at-will employee is the most
vulnerable. If possible, it may be recommended to attempt to
negotiate for one of the following four categories.
2. At-will with notice. Either the employee or the employer is to
give the other written notice, at intervals of 30, 60 or 90 days
before the termination date. If associates have "with notice"
in their contracts, they should be aware of this deadline, by
which they have to tell the employer whether or not they're
staying. Employees can find themselves sued for damages
(money) if they don't communicate their intentions in
accordance with the contract, as the dentist discussed above
found out to her own detriment. Associates should realize,
however, that "notice" works both ways, with consequences:
Although it's better than being purely "at will," the associate
still could be out of a job for no discernible reason-with
just 30, 60 or 90 days to find another one.
3. Termination for cause. An employee can be terminated for
egregious activity only, such as fraud, dishonesty, malpractice
or a crime other than minor traffic violations. There will be
no notice, no severance and no time to fi x the problem. Here,
employees should be aware of the terms that define "for
cause," which may be different based upon state law or the
terms of the contract.
4. Termination without cause. An employee can be terminated
if it's just not working out, such as an inability to get along
with staff or patients. The employee will receive notice to fi x
the problem before the action is taken, and if there is, there
may be severance pay.
5. Contract for a fixed amount of years. The employer can't
terminate the employee except for cause. This could apply
when the employee is an orthodontist who has a special skill
that's desirable to other practices.

the last time we spoke. Although she left that job on good terms,
things had soured because her former boss refused to pay her the
percentage of funds that were collected after she left, which she
believed she was owed. However, no provision in her contract
existed for postemployment compensation.
Prospective dental associates probably do their homework on
what is a reasonable salary, because it has the most influence over
whether they accept the job. Unfortunately, salary is also the hottest
wellspring for future disputes. A clear discussion followed by a
detailed contract provision is important to prevent strife. Because
compensation is based on business custom, there is room to discuss
trade-offs, such as the modification of duties or paid continuing
education days. Importantly, employees will want to be paid for
everything they produced up to the last day they worked, and have a
provision for collecting their percentage after they leave the practice.

Conclusion
Later at the seminar, I caught up with Dr. Lloyd at the break.
He told me that for his present associate position, he had applied
the lessons learned: By hiring an attorney for his present contract,
he was informed, composed, protected, and able to ask the right
questions. That created a more comfortable and confident working
relationship for both him and his employer, and he was happy with
the arrangement. n

References
1.
2.
3.
4.

CA Bus. & Prof. Sec. 16600, 16601,16602, 16601.5 (California Code (2018 Edition)); Edwards
v. Arthur Andersen LLP, 44 Cal.4th 937, 189 P.3d 285, 81 Cal.Rptr.3d 282 (Cal., 2008).
Tex. Bus. & Com.Code Ann. § 15.50(b)(2).
Karlin v. Weinberg, 390 A.2d 1161, 77 N.J. 408 (N.J., 1978)
Community Hosp. Group v. More, 183 N.J. 36, 869 A.2d 884 (N.J., 2005)

Compensation
Recently, at a convention, I ran into a colleague whom I hadn't
seen in a while. She told me she no longer was at the job she had

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Orthotown May 2019

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