QUICK BITES According to the ADA, half of all associateships fail — for one reason or another. To improve the odds for successful hiring, the ADA created ADA Practice Transitions or ADAPT, a national program to assist members. ADA member dentists can get complimentary assistance securing their first job through ADAPT. For a small fee — $500 — experienced ADA members can get assistance finding their next associateship. For $4,500, ADAPT also helps owners find associates seeking employment. Learn more at www.adapracticetransitions.com.

Publisher’s Note: This story is the first of a two-part examination of employment issues concerning associates/employees and employer/owner dentists. Our second installment will explore the difference between associates and contractors, and provide answers to additional member questions.

The glimmer of that first job out of dental school.

The anticipation of bringing on a new employee.

Whether you’re a new dentist seeking an associateship or a practice owner looking to add a new employee, getting to “You’re hired!” can be an arduous and stressful experience. The good news is, there are resources available to help new and veteran dentists with that process and hopefully avoid some of the common pitfalls that result in hiring miscues.

ADAPT

Dr. Suzanne Ebert knows what it’s like to be both a new dentist seeking employment and an owner looking to hire. A general dentist by training, Ebert started her own practice a year out of dental school, which she went on to operate for 11 years before she had to sell it for personal health reasons. Eventually, she was able to re-enter the profession as the director of a federally qualified health center. There, she found herself doing a lot of counseling of younger dentists who were stressed out by the hiring experience.

At about the same time, the American Dental Association wanted to address challenges members experience with the employment process. In 2018, the association launched the ADA Business Innovation Group (ADABIG) to serve the needs of the dental community. ADABIG’s first program is ADA Practice Transitions (ADAPT).  This program piloted in just two states, but with the encouragement of dentists and associations like WSDA, it grew quickly and is now a national effort. In 2021, it helped facilitate transactions for 72 dentists nationwide.

As someone who was active in her own state association, Ebert translated her counseling work into a national role. Today, she serves as the ADA Business Innovation Group’s vice president of dental practice & relationship management, helping new dentists and owner dentists find success in hiring, buying, joining and selling.

“To me, becoming a dentist was life changing,” said Ebert. “ADAPT helps dentists find the right practice to join as an associate or to own, and we help owner doctors find the right associate or sell their practice. So we really are helping both sides of the equation,”
she said.

Ebert said she encourages doctors who are looking for placement to think about how they want to practice dentistry as they move forward. What are their goals for the future? Then they can find the practice that fits those goals.

“Too often when you’re scared and looking for your first real job, you try to alter your persona,” she said. “We want to encourage people to think about what they want and find the right practice for them. What works for you – what fits your style?”

As Ebert notes, the first couple of years of being a dentist present a steep learning curve. Students graduate and may think that
unless they pursue a career in a big city they will never make enough to pay off their student loans.

But Ebert says other options do exist — and they often don’t involve big cities.

“In smaller markets and rural areas with little competition, dentists may be looking for people to come into their practices and are willing to pay really well — more than their urban counterparts — to help them out. Younger docs don’t often know where to look to find these great opportunities. They think they have one option — to go to something that’s in a city or where they’ve been told the practices are.  There are DSOs, private practice offices, public health — great opportunities are out there where you can get student loan repayment as well. So why don’t you find the place to become the dentist you want to be?”

There are all kinds of different options, said Ebert, but doctors don’t always understand them.

ASK QUESTIONS

Many of the conversations Ebert has with owners and associates make their way into the ADAPT blog. In her post, “5 Tips to Find the Right Dental Associateship for You,” she lays bare the reality of today’s hiring: half of all associateships fail for one reason or another. Most often, she writes, this can be traced back to the start of the search and how clearly goals and expectations are shared by new dentists seeking employment and owner dentists looking to hire.

Communication, Ebert says, is essential from the very beginning.

One of the hallmarks of the ADAPT program is a toolkit where prospective associates and owners come together to discuss everything — from each party’s mission, vision and purpose to financial details, staffing, supplies — anything and everything related to the practice.

And that can be tough for dentists who have owned and operated their own practice for 20+ years to suddenly share this level of detail and information.

“It can be difficult for owner doctors to understand — they don’t think they should be asked certain questions. Owner docs need to understand that students graduate today with $600,000 worth of debt. So they need to understand how they will get paid and how office policies will affect how they get paid,” said Ebert. “But if you want that dentist to take over your practice in the future, you also need to have those conversations up front. That person may never want to be a practice owner. The toolkit forces that conversation,” she said.

Associates should also consider participating in a treatment planning session with the owner doctor and visiting the office not once, not twice, but three times.

“Ask to look at treatment plans. Are you relating to the other dentist on a professional level? Shadow them for a day and watch them work — do it three times,” she said. “The first time everyone in the office is on their best behavior. The second time, they’ll likely still be on good behavior. But by the third time, you’ll see what things are really like in that office. Associates need to pay attention to how staff are treated. Does it fit your style?”

If it doesn’t, it’s a sign that perhaps that associateship isn’t the right fit. And that’s OK, Ebert said. It’s all a part of the employment search process.

CONTRACTS ARE A NON-NEGOTIABLE

Contracts take time, and they may require a small investment in an attorney’s time up front, but Ebert says they are a must. It’s worth the initial investment of time and resources to get everything on paper so both parties are clear about everything related to the position, she said. 

“Some owners think a handshake agreement is fine, but it’s not in this day and age,” said Ebert. “Protect yourself with that contract. Don’t get caught in a position where you have to go after someone because you didn’t outline something. Owners need to be open to having conversations with these doctors. Make sure they fit your office style. Who is the right person for you? If it’s not working out, how are you going to get rid of them? What happens when work is not done to your standard of care?” she said.

And if you’re an associate, when you receive that written contract from a prospective employer?

“Read it!” said Ebert. “All too often an associate with their first offer looks at the compensation — and then they stop. Always read the entire offer,” she said. “Once the contract is written up, take it to your own lawyer and make sure you know what’s in the contract. Again, so much of it is communication.” 

And contracts aren’t just there for when the employment relationship begins — they’re also there to guide actions when things just don’t work out.

“Every contract will have a ‘what happens if things go wrong’ section,” said Ebert. “I get asked all the time, ‘Do I need one?’ Absolutely. Even in a family-owned practice where a child is coming in to practice with a parent — [a contract] starts those conversations on a professional level. You still need to share mission/vision/values. Sometimes you’re going to find out this isn’t the right fit. Contracts allow you to relate to the other person on a professional level, not as a family member.” 

A contract’s restrictive covenants are probably the top issue she sees in associate contract disputes.  Restrictive covenants specify a variety of issues, including what happens when an associate leaves the practice. This may include non-compete language regarding where an associate can practice once leaving the office, or whether an associate can take patients with them when they leave (see related Q&A sidebar).

Owners need to protect their practice, so they put in restrictive covenants — usually a geographic distance from the practice and a time frame for how long that restriction is in place,” she said. “However, so often owners don’t understand what that restriction really is and how it should be constructed. And younger docs don’t understand they really need to look at it — it can affect how they practice later,” Ebert added. “Owner docs don’t always think about how this plays out. Too often they just pull numbers out of thin air that aren’t reasonable.”

So, whether you’re an associate or an owner, make sure everything that’s in the contract is something you can live with, said Ebert. Ideally, associates and owners will have invested time in advance of any contract being crafted to explore all of the important practice issues, so that when the contract is written, both parties have a clear sense of the agreement.

If they’re sharing the same culture or “philosophy of care,” she said, things seem to work well long term.

It all just fits, Ebert said. 

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Employment Contract Q & A

This resource has been prepared by Studebaker Nault, PLLC. It is not a substitute for legal advice or individual analysis of a particular legal matter. Transmission and receipt of this resource does not create an attorney-client relationship.

When the office I work at as an associate gets sold to a new owner, what happens to my original contract?

A dentist’s employment agreement should state whether a party to the agreement may assign, delegate or otherwise transfer rights or obligations to another party. Typically, prior written consent from the other party is required to do so. In general, if an employed dentist works for a practice that changes ownership, whether the employment relationship continues following the change in ownership depends on the how that change in ownership occurs. If it occurs through a sale of shares in the practice, the dentist may become an employee of the new owner. On the other hand, if the change in ownership occurs through a practice asset sale, the employment relationship most often will end on the date that the sale is finalized.

Is having a non-compete covenant legal in a contract in Washington state? When is a non-compete enforceable? If my previous patients reach out to me and ask me about the new office I work at, do I have to turn them down and ask them to stay at my previous office because of a non-compete clause?

Restrictive covenants can take a number of forms, including non-competition agreements, non-disclosure agreements, and non-solicitation provisions. Often, an employer will include broad restrictive covenants in an employment agreement to protect its practice. Employees generally want to limit the scope of any restrictive covenants, particularly those that apply post-termination. Because most states presume that an employee owes a duty of loyalty to his or her employer, restrictive covenants that apply during the term of the employment agreement will usually be enforceable as written. Enforceability becomes less clear when the covenants are intended to apply post-termination. Of note, the Washington State Legislature recently passed a law, chapter 49.62 RCW, limiting the enforceability of certain non-competition provisions. Section 020(b) states non-competition provisions are unenforceable unless employee annualized earnings exceed $100,000 per year (adjusted annually). Section 030(1) states non-competition provisions are unenforceable unless independent contractor’s earnings from the party seeking enforcement exceed $250,000 per year (adjusted annually).

In my contract there is an indemnification clause. Does it mean the owner is not responsible at all for patient-related issues that happen in the office even though they are the ones setting up the rules?

Indemnification provisions are often disputed portions of any employment agreement for dentists. Since injured patients may sue a dentist for damages, employment agreements almost always contain some form of indemnification. Dentists should ensure that indemnification provisions are precise and that the provisions require payment of attorney fees and costs. Indemnification rights can be tailored. Some provisions provide for broader rights and apply to conduct including “acts or omissions” undertaken under the agreement. In contrast, other provisions apply only to conduct rising to the level of “negligence,” “gross negligence,” or “willful misconduct.”

Can an employer dentist dictate the number of patients and how long you have to see them during or after you sign a contract and hold you in breach of contract if you cannot safely see that many patients in a day?

A dentist’s physician agreement should explicitly reserve the exercise of medical judgment to the dentist. This would include the number of patients treated and the duration of patient-dentist encounters.

I have no role in hiring or training the staff in the practice where I work. If they do something to put a patient at risk while I am there (such as not reading the allergies and exposing them to an allergen) am I liable if I am the one working in the office that day?

Under certain circumstances, a dentist can be liable for services performed by a staff member (e.g., where the dentist had a duty to supervise the staff member) and that duty was breached.

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This article was originally published in the Winter 2022 issue of the WSDA News.