So we’re still on the topic of associate agreements. In the first blog, I talked about how they play a role in virtually every dental practice – regardless of how it is legally structured. In my second blog, I talked about some of the differences between having the Associate as an “Employee” vs. an “Independent Contractor”. In the third blog, I discussed restrictive covenants in associate agreements (e.g. non-competes and non-solicitation clauses). In this blog, I’m going to be talking about how to lay out the Associate’s responsibilities in the associate agreement.
There are many provisions in the Associate Agreement that deal with what the Associate will be responsible for. Now, let’s assume (for the purposes of this blog) that we’re talking about an Associate as an Independent Contractor instead of as an Employee (you can see my second blog about this topic if you want to know the differences). You can use an independent contractor agreement with or without schedules (you might also want to consult with a lawyer about specifics dealing with your dental practice in order to customize this agreement – such as ownership of patient records, etc.). A schedule is a document at the end of the agreement which contains details about the work to be performed by the Independent Contractor. If you don’t want to contain that information as an attachment in the Schedule, you can include that information in the agreement itself.
So, with respect to the Schedule, you can define the following aspects of the Associate’s responsibilities:
- job title
- roles and responsibilities
- term of the contract (start date and end date of the contract, if not terminated earlier in accordance with the agreement)
- timesheets (to be submitted by the Associate at the end of a certain period in order to document their hours and get paid!)
- paying taxes (recall that the Independent Contractor is responsible for paying taxes, not the Client)
Now, going back to the agreement itself, it typically says that the Contractor is responsible for providing, maintaining, and replacing its own tools to do the job. That’s typically what these documents say, but the reality is that dentists use tools, instruments, and machines that are supplied by the dental practice (i.e. the Client). Dental Associates are not exactly walking in with their own tools, sterilizing them and then working on patients. So you might consider removing this provision to reflect the reality. Will the fact that they’re using the Client’s tools make them Employees? Not necessarily. One needs to examine the whole factual relationship that exists between the payor dentist (i.e. the Client) and the person providing services (i.e. the Associate). If the reality as a whole looks more like an Independent Contractor, then they can still be Independent Contractors.
The Associate may be asked to enter into a confidentiality and non-disclosure agreement (because they’re dealing with sensitive information about clients and the dental practice). This may be incorporated into and included in the independent contractor agreement by reference. You definitely want to have a proper definition of what constitutes “confidential information” in that agreement. If you need help, contact a lawyer.
You also want to say something like the Client owns the proprietary information at all times during and after the relationship. That proprietary information would no doubt include patient records, charts, lists, etc. It can also include things like techniques, know-how, inventions, logos, drawings, specifications, etc., that are developed by the Associate during the course of them providing services to the Client.
Regulations under the Dentistry Act, 1991
Finally, you want to make sure that you are not, through your independent contractor or employment agreement and in your actual practice, violating the Professional Misconduct Regulations made under the Dentistry Act, 1991. For example, as a client, you cannot tell your Associate to recommend or provide unnecessary dental services, abuse patients, or provide services while under the influence of any substance that impairs their ability. It’s important to be mindful of these ethical and professional rules as you (the Client) deal with dental Associates.
If you need help drafting or negotiating an employment agreement or independent contractor agreement for your dental practice, you should consult a lawyer. You should also have an employee policy manual that deals with things like workplace safety, human rights issues, benefits, etc.