QUESTION

Can a contract between a medical practice and an employed physician cite Federal Employment as "competition" if the employed physician resigns.

Asked on Jun 24th, 2014 on Contracts - Oregon
More details to this question:
I am an employed physician with a medical practice. Instead of a non-compete, the contracts calls for liquidated damages of $100,000 if I resign and work within 70 miles of the practice, and hence "compete" with my employer. The contract specifically states that I would still be responsible for liquidated damages, even if I work for the VA Hospital in town (within 70 miles). Can this type of contract specifically claim liquidated damages for working for the Federal Government? In other words, is the VA a "competitor" to a private practice? Is it legal to keep someone from Federal Employment who is otherwise qualified (I am a former VA employee).
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1 ANSWER

Appellate Practice Attorney serving New York, NY
The VA is a competitor within the meaning of the contract if the contract says the VA is a competitor.  That is what you agreed to.  If you agree not to eat meat for a week, and your contract defines meat as including tuna, you breach the contract by eating tuna.  However, I have substantial doubt about the enforceability of this provision, as non-compete provisions (which is what this is; the liquidated damages are only a remedy for the breach of the non-compete) are looked at very skeptically by the courts (although they are more likely to be enforced against employees with special skills, like physicians).  My gut is that keeping you from working for the VA is not protecting any legitimate interest of your employer, the 70 mile radius will be considered too wide an area, and there would certainly need to be a time limit on the non-compete for it to be enforceable.  Moreover, in the jurisdictions with whose law I'm familiar (which doesn't include Oregon, but I suspect it's the same) liquidated damages are only enforceable if (a) it would be difficult or impossible to calculate the actual damages caused by a breach; and (b) the liquidated damages amount reflects an honest attempt to approximate what the actual damages would be.  This clause seems to violate part 2.
Answered on Jun 25th, 2014 at 9:42 AM

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