With more women graduating from dental school, we're seeing more dental babies. What protections does the law provide for employers and employees? And what can an individual do to be their own best advocate for parental leave? In this episode we speak with Cathryn Albrecht, one of the ADA’s lawyers, to help us wade through these issues.
Legal and Regulatory Matters
Parental Leave: Do I Get It? Do I Have to Give It?
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Dr. Betsy Shapiro: Welcome to the ADA practice podcast Beyond the Mouth where we won't discuss clinical dentistry, but everything else is fair game. I'm Dr. Betsy Shapiro, a director with the Practice Institute of the American Dental Association and I'm here with Catherine Albrecht. Catherine is senior associate general counsel at the ADA and she's very well versed in labor and employment law. When we talk about labor with Catherine, we generally mean workforce, but in this episode we're going to focus on a different meaning of that word and talk about maternity leave. I want to give a little disclaimer here. Catherine is a lawyer and is very helpful in sharing tips, but she's just sharing tips. We want to be very clear that she is not giving actual legal advice. I'm a member dentist, she's not my lawyer and she's not yours. Simply, she's just doing her best by talking through the things that we need to think about on this particular topic. So welcome to the show, Catherine.
Cathy Albrecht: Hi Betsy. Thanks for having me.
Dr. Betsy Shapiro: We're glad to have you. We're talking about maternity leave and I understand that there is a very broad field of rules and regulations on different levels that apply to this. Could you give us an overview of what they are for starters?
Cathy Albrecht: Sure. And I think that's a good idea. It can be very confusing and for some, kind of daunting. But there are a couple of different categories and I think that that would help. The first, and one of the biggest parts of this that sort of relate to maternity leave is Title VII of the Civil Rights Act of 1964. Which is the big federal anti-discrimination law that prohibits gender discrimination and sex discrimination among many other things in the workplace. So that will require employers to treat female and male employees with equal consideration and not to favor one over the other or disfavor one over the other.
Title VII is the federal act. It's been amended by the Pregnancy Discrimination Act of shortly thereafter, I want to say 1978. And so now all of that has been rolled together and the issue of maternity leave and pregnancy related conditions does relate to pregnancy conditions.
The other big one out there is the FMLA, which is the Family and Medical Leave Act, which provides job protected leave and that's an important one. Your job is protected. You leave for a while, you come back and you get your job back or an equivalent job, if there's some issue with that. But basically provides up to 12 weeks of job protected leave for employees of companies of a large enough size. So with a family medical leave act, it applies to employers with 50 or more employees within a 75 mile radius. So it's pretty big group practice and the first one, Title VII and the Pregnancy Discrimination Act amendment applies to those with 15 or more employees.
There's also the Americans with Disabilities Act, which deals with how employers need to accommodate issues with disabilities. And that again has a small business exception of like 15 or 20 employees. So there's a lot of laws out there on the federal horizon, there tend to be small business exceptions. But state and local localities may also have parallel laws and they may actually provide greater benefits and it's those greater benefits, whatever the best benefit is, that's what you would get in your area. So you really need to do some research before going into this because it gets a little complex.
Dr. Betsy Shapiro: You talked about the Americans with Disabilities Act, which of course here at the ADA we refer to that as the other ADA. Do they consider pregnancy a disability?
Cathy Albrecht: Functionally, yes. Pregnancy and pregnancy related conditions are covered as they are under the pregnancy discrimination, there's kind of an overlap. What the Americans with Disabilities Act provides is a requirement to reasonably accommodate. Which is very similar to what we might find if you know, someone develops a life threatening disease or something. Pregnancy can create some conditions that are, for the purposes of application of the act, considered disability. Things like gestational diabetes or early dilation or you know, something giving rise to high blood pressure. Those kinds of things may need to be accommodated under the Americans with Disabilities Act and, these anti-discrimination laws.
Dr. Betsy Shapiro: Here's what I need to know. What do I get and what do I have to give when it comes to maternity leave?
Cathy Albrecht: Well, I think it's a popular misconception among pregnant ladies that there would be some sort of accommodation in the workplace that would permit them to take some time off of work and take care of the baby and then come back and resume their work with the practice.
The one thing that I think folks need to keep in mind is that not every practice will be covered by the laws that afford folks leave. And I guess what I would say is, don't assume that you're necessarily going to get job protected leave. That is, leave that you can come back from. And number two, don't expect that it's going to be paid. In many places it will be, but you really need to check first.
Dr. Betsy Shapiro: So that's interesting. When you said that we often assume that everyone is entitled to this, but that not every practice is covered. Why wouldn't a practice be covered?
Cathy Albrecht: Well, it has to do with the web of laws that protect employees in this situation. And there are a number of parallel sort of schemes. One is the federal legal process, one is the state process, and there are also local processes. And in each one of those stages, and it's a little difficult to generalize except to say that a lot of these laws have small business exceptions. Which means that if the practice does not have more than 15 or 20 employees, they're not covered by the laws that would afford leave. Now, that will vary from state to state and locality by locality, which is why I say that.
Dr. Betsy Shapiro: If there are all these levels of laws: federal laws, state laws, local laws, which one trumps and how do I figure that out?
Cathy Albrecht: Well, the way to figure it out as the one that gives you the most, it's the one that you would expect. So which law protects me the most? So it could be that federal law, because the practice only has 10 employees, doesn't cover me to protect my job while I'm gone. But it could be that a state law says that any business that has one or more employees is covered. So the law that will apply to you is the one that is most advantageous to you. You need to sort of look at all of these things, but the good news is that you'll get the best that's available to you.
Dr. Betsy Shapiro: That's encouraging. At least I like that part of it. So you said something else that didn't sound quite so lovely, that it would be various whether or not I was entitled to leave or not entitled to leave and what that might be. But you also said I might not get paid. Really?
Cathy Albrecht: That's true. I think it's important to keep in mind that there are a couple of different ways that you can be paid during your pregnancy leave. One is disability and that's something that covers the period of convalescence after giving birth.
The other is actually leave that's designed to afford a parent time to bond with the child. And what that means is that you may be afforded some time under federal law or state law or local law to just bond with a child. And again though, make sure that you're not in a small business exception.
Let me say one more thing on the leave. We've been talking about the ability to have leave and that there's these different state and federal laws. And there are a couple of different kinds of laws. Anti-discrimination laws, the laws that protect employees against sex or gender discrimination, are often applied to decide whether or not someone is entitled to leave or entitled to any consideration as a result of a pregnancy. And again, that's one that you need to have 15 or more employees in order to be covered by. And so that's, that's an anti-discrimination law. You cannot deny to a pregnant person something that you would afford to any other employee, for any other reasons.
So for example, if your practice affords folks a period of light duty or a period of leave as a result of a workplace accident, they could not also deny that kind of leave to a parent. There's also the Family and Medical Leave Act, which requires you to have even more employees. And we're seeing some practices that would fit these criteria. So the Family and Medical Leave Act protects individuals that work for businesses that have 50 or more employees within a 75 mile radius, right? So if you have a number of different locations and in total, within 75 mile radius, and they have a total of 50 or more employees, then you are entitled to the protection of the Family and Medical Leave Act. Which will give you 12 weeks of protected job leave for various different conditions. And that includes pregnancy and um, bonding with the child afterwards.
So there's, there's really a few, if you think about it as a Venn diagram, you've got a whole lot of different laws in there. And hopefully in the middle you've got some area that there's overlap that will give you some leave. And when I say job protected leave, what that means is, you would leave before the birth of your child and that you're entitled to come back at the end of the leave. Not every job would be like that.
Dr. Betsy Shapiro: Would you be entitled to come back to the exact same job? Do they have to hold that one for you?
Cathy Albrecht: It depends. Technically they have to replace you back to the same or have an equivalent job. Which could be maybe not necessarily the exact same hours or the same schedule, but it needs to be functionally the same level of job and the same kind of job. And typically, I would say in a typical dental practice, that shouldn't be a problem getting people back to work.
Dr. Betsy Shapiro: What if I don't have any particular maternity leave in the practice I work in? But the dentist, the owner dentist, has always given any of the women who've had babies six weeks off unpaid. Can he make me take my vacation time first, before I go to that six weeks?
Cathy Albrecht: It depends on what the policy of the practices. There are limitations on it. If you're covered by the Family and Medical Leave Act leave. But generally speaking, if the employer has a practice of doing it for other folks, other women, you would have an argument or other people, you'd have an argument at least if the practices large enough that, that you're entitled to those protections.
Dr. Betsy Shapiro: Talk to me a little bit about pay protection and what that means.
Cathy Albrecht: First of all, it's a competitive advantage for employers. And I think what you're seeing, you're seeing States more and more providing paid and sometimes localities. I think San Francisco has a paid medical leave for a certain period of time. And I don't think it's a coincidence really that you're seeing more and more locations affording leave as a competitive advantage to attract people to the practice. So it could be that the practice would just simply as a matter of an employee benefit, and to attract talent, will have a leave benefit. But otherwise the practice will have it. It can decide whether to have it or not have it. If it does have it, it will need to make it generally available, outside of the period of recuperation, the same general leave requirements available also to men.
Dr. Betsy Shapiro: Okay. Well when they talk about leave benefits, does that mean just my salary or will they still cover my insurance that I've been getting as an employee there or does that differ?
Cathy Albrecht: People tend not to ask those questions and find out or maybe be disappointed afterwards. So it is important to ask. But no, they will not necessarily. The employer can decide what their policy is, whether it's paid or not paid. The Family and Medical Leave Act for example, says that you can make an employee use their vacation time first or use their sick time first and make it, you know, compensated that way even though they don't give paid leave. But you really have to understand what the employer's policy is, as a general matter.
And going back again to workers' comp. If the practice would, if anybody else got injured on the job, male, female or non-pregnant, if they would be afforded leave, if they, whatever the terms are with that person's leave, they'd follow the same terms. They would have to, they'd be legally obligated to follow the same terms with the pregnant employee.
Dr. Betsy Shapiro: Interesting. So I guess there are a few outlier questions that I'd like to ask, and you can see if you want to answer them or not. But what if I'm the owner dentist and I'm going on maternity leave? Do I have to pay my staff while I'm on maternity leave?
Cathy Albrecht: No. No you don't. And actually the difference between you and one of your employees is that you are the employer, not the employee. And what we've been talking about are employee protections. No, you don't have to.
Dr. Betsy Shapiro: I ran across another instance, a dentist friend of mine built her practice, lovely practice and put in a nursery because she knew she wanted to have a family. And she was one of these people who was great, in that her due date was this and she planned to take two weeks off from maternity leave. She delivered on the day she was due. She took her two weeks, she came back to the practice with the nursery there so that she could have the baby with her. And then, under that “other duties as assigned,” asked her staff to, you know, step in and change a diaper and do things like that. Which for her went well. But are there problems with that?
Cathy Albrecht: Well I can't say that there would be legal problems with that. I could imagine there being just sort of personal conflict issues with that. I mean, I wouldn't necessarily go shopping for a anniversary present for my boss either, if my boss asked me, but it's nothing illegal about it.
Dr. Betsy Shapiro: Would she also have to let her staff use that same nursery when they had children?
Cathy Albrecht: Not necessarily.
Dr. Betsy Shapiro: When you're the boss, you get to make those decisions?
Cathy Albrecht: Yeah, that’s one of the perks of being the boss.
Dr. Betsy Shapiro: There should be some.
Cathy Albrecht: Yeah.
Dr. Betsy Shapiro: What about, if I'm in the middle of my pregnancy, and I need to go on bed rest? Is that different than any of these other things? You know, we're talking about the post-pregnancy, the stress of delivery and things like that. But if its bed rest that my doctor has prescribed?
Cathy Albrecht: Well, if your doctor prescribes bed rest and you're covered by the anti-discrimination laws, that is the ones that protect against gender discrimination because you have 15 or more employees, or because the locality follows it, they would be required to afford a pregnancy related disability. Things like gestational diabetes, early dilation or the like, those would need to be accommodated just like any other disability, like a medical disability. It's just a rather unusual sort of situation because it typically isn't a longstanding disability. But that is something that the employer would need to accommodate in the workforce, if reasonable.
And the accommodation could include omitting some duties if necessary. Getting some time off, if necessary. And that would be job protected time off. So yes, if something like that arises, there would be protections either under the Pregnancy Discrimination Act, which is a sort of a part of the anti-discrimination laws or under a disability laws generally.
Dr. Betsy Shapiro: So you just referenced pregnancy-related conditions. What if I'm trying to get pregnant?
Cathy Albrecht: I think most people don't consider that. But things like in vitro procedures and the sort of preparation fertility procedures and the like, or the history of difficulty getting pregnant, or the history of miscarriages, are also protected. So that if you need to have time off in order to have a fertility treatment or what have you, the laws would also permit that. So those are the kinds of things that before, if you have trouble getting pregnant, you are working on procedures to get pregnant.
It also applies after birth. In the sense that if you are breastfeeding the baby, that would also be a pregnancy related condition that would require an employer to make it a convenient and find some accommodation to let the now new mom express milk at work, those kinds of things. And even some States will have, in fact, I think most States now have some requirements for employers that they make available a private space for women to breastfeed. So it's broader than simply giving birth to a healthy baby. It includes all of those related conditions as well.
Dr. Betsy Shapiro: Does any of this apply for adoption situations?
Cathy Albrecht: Yes. The Family and Medical Leave Act. It does give bonding time for a new adoption of a new child. There's a couple of different things that you wouldn't think of, but yes, it does provide for time for the adoption of a child.
There are also, if the child had a serious medical condition, there may be legal protections for the parent to continue to take care of that child going forward. If there need to be periodic doctor's appointments or the like. It can sometimes go beyond, even though the infant obviously isn't employed by the practice, the parent may have protections to care for the infant as well.
Dr. Betsy Shapiro: That's interesting, and it's comforting too. I think most dentists are caregivers. I mean that's part of the reasons we went into this field. We hate to make things be mandated, but it's nice to know that there are ways to make things work comfortably for everyone.
So if I'm coming in as an employee, I guess the takeaways for me are that I should read the policy manual really closely. And ask some questions of the owner about how they handle things. And on the third leg of knowing the laws in the area, is there a place to go look or how do I find out what they are?
Cathy Albrecht: Well, the best thing I think would be to just Google it. You'll find the federal agency that handles employment issues like these. The Equal Employment Opportunity Commission has pregnancy related guidelines out there, Q and A's for both employers and employees to use. There's a lot of resources online.
I guess the big takeaway I would have is make sure that you understand what your benefits are well in advance of your due date, so that you're not unpleasantly surprised. Because the sleep deprived aren't always the best researchers.
Dr. Betsy Shapiro: I think this is all very interesting. I know I have been here at the ADA for seven years and I know you've been here. Have you seen this field of law changing a lot as more and more women are entering the workforce?
Cathy Albrecht: Yes, very much so. And I would say I've been practicing in the area of employment law for over 20 years now, approaching 30 actually. And yes, it has changed. In fact Family and Medical Leave Act was new in my career. But what we're seeing more and more, and where I think things are moving, is to more and more states and localities, if they can afford it, industries that can afford it, of making these sorts of benefits available to women. If you look at the representation of females in dental schools, they're half the workforce easily. If not more. You know, people always want the best talent and I just think competitively this is where we're going. We've seen it in the last few years, particularly in the area of family leave because compared to Europe we're way behind. You know, many countries have paid leave and we don't. So for right now that's not a priority, but I think we're moving in that direction.
Dr. Betsy Shapiro: We really appreciate your time today, Catherine, and enjoy so much all the different things you've told us. I think it's still a task that requires a lot of thought, both on the employer and the employee, when you're going into the situation. But you've given us some excellent points to think about as we go through it.
I would also add that we do have some resources for employers who are putting together a manual for their staff. It's under the Guidelines for Practice Success Staff issues. We have some resources on suggested language for your policy manual about these issues.
Dr. Betsy Shapiro: Now we're at the part of the show where we answered a question we received from a member. In the Practice Institute here at the ADA we get member questions every single day and this is one we'd like to share. It is in relation of course to maternity leave. My employee doesn't want to be around x-ray units or nitrous oxide units, despite the fact that we have dosimetry badges. And we have a nitrogen scavenger system that is excellent and we've never had any incidents. Do I have to allow this, for her to not be around?
Cathy Albrecht: Unless you're getting direction from a staff member’s doctor saying that their exposure needs to be limited, you don't need to take any action based on a person's fear. If a health professional had some very restrictive requirements on the person's activities, then you probably would need to accommodate in some fashion. But that may not necessarily mean them not doing any of their job, just sitting around all day waiting while someone else does it. But maybe taking some time off. So the answer is no, unless a doctor or healthcare professional is saying something.
Now on the other hand, you set the stage where you've got the badges. I'm presuming the equipment's being regularly maintained. If that were not the case, that could be more of a problem perhaps with a potential inadvertently causing something you didn't intend to. But that's typically not the case.
But the one thing I would add, just to bring home the point, it also doesn't work the other way. In other words, if you're a practice owner and you believe that your dental assistant should not be lifting heavy objects because they're pregnant, or they shouldn't be doing certain things, they shouldn’t be on their feet for certain things, and the employee is not asking you for that accommodation, you cannot make them stop doing those things either.
Dr. Betsy Shapiro: Oh, that's interesting. So you can't be a mother hen to your expectant mothers?
Cathy Albrecht: No, as much as you may want to, you cannot.
Dr. Betsy Shapiro: Well, thank you very much, Catherine.
Cathy Albrecht: Thank you, Betsy.
Dr. Betsy Shapiro: It was just wonderful to have you here and give us some things to think about in some ways to approach navigating through the maze of maternity leave, for both ourselves as owners and as employees and for our employees if we are an owner, all those different avenues.
Dr. Betsy Shapiro: We'd like to thank our sponsor, ADA Member Advantage for their support and to Sandburg Media for producing this podcast. And thank you for listening to Beyond the Mouth.
Contracts 101: Before You Get In, Know How to Get Out
In this episode we speak with Jeffrey Fraum, one of the ADA's lawyers. Jeff gives a brief tutorial on what to look for in exit clauses and auto renews, so that you know exactly what you're getting into before you sign on the dotted line.
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Betsy Shapiro: Welcome to the ADA practice podcast, Beyond the Mouth, where we won't discuss clinical dentistry, but everything else is fair game. I'm Dr. Betsy Shapiro, the Director with the Practice Institute of the American Dental Association. In this episode, we're talking about how to deal with unwanted contracts. I'm here with Jeff Fraum, Senior Associate General Counsel at the American Dental Association. Prior to his tenure here, he represented clients in the telecom financial services and commodities industries. Jeff, welcome to the show.
Jeff Fraum: Thank you, and thank you for having me.
Betsy Shapiro: As a disclaimer, I want to make it very clear that Jeff is a lawyer at the ADA and he's extremely helpful in sharing tips, but I want to point out that he is not giving actual legal advice to any of us. I'm a dentist member, but he's not my lawyer and he's not yours either. He is as always doing his best by giving us some pointers to help keep us out of trouble. Telecom, financial services and commodities. If you throw in gym memberships, dating services, and medical waste haulers, I suspect we've hit a pain point for everyone listening today. So we're kind of getting contract law for consumers, right Jeff?
Jeff Fraum: That's correct. And I know we were going to talk about how to get out of an unwanted contract, but we're going to spend a good bit of time on how not to get into a bad contract.
Betsy Shapiro: That sounds like fair game. I'll listen to that. So tell me what you want to start with on this.
Jeff Fraum: Well, I want to start with before you sign the contract, when you sign the contract, you will probably know what you're going to get, what you're going to pay. But I'm telling you, don't sign the contract until you know how you can get out. That means how you terminate the agreement, when you can terminate the agreement, what it will cost you to terminate the agreement, and particularly if it's a data agreement, how you transfer your data at the end of the agreement. 50% of all marriages end in divorce. Contracts are also going to end. So just like you know what you pay in, and when you supposed to pay it, and what you suppose to get, take the time at the beginning and know how you're going to get out of it.
Betsy Shapiro: How do I know how I'm going to get out of it?
Jeff Fraum: Well, you need to read it and it doesn't take that long. The vast majority of agreements are written in English, and it may be small print, but it's English. Take a couple of minutes, make sure you read it, talk it over with someone else if you need to. But again, just like you know what you're getting, make sure you know how to get out, when you can get out and what it's going to cost you to get out. A few years ago we had some ADA members that had a contract with a waste hauling company, and that contract had an auto-renew provision, which meant that if you didn't terminate it, it automatically renewed and you had a very narrow window under the agreement in which to get out.
So you had a window of 60 to 30 days before the anniversary of the contract, so it would run for three and I believe in some instances, five years. And if you didn't notify them within that narrow window that you wanted out, that contract automatically renewed for an additional three or five year term. To make matters worse, the vendor had broad rights to increase the price during the term, so folks realized that they had not gotten into a good agreement. If they had read their exit strategies carefully, they would have known that. But like a lot of people, that was just the small print and they didn't concentrate on that.
Betsy Shapiro: So they really, if they failed to cancel it or terminate it is the word you're using, at that little window, they were stuck for the next three to five years, more or less.
Jeff Fraum: Right. I would be very leery about getting into a contract with an auto-renew. In certain circumstances, you may want an auto-renew, for example, a security system. Well, I don't want that to lapse, so maybe an auto-renew is appropriate in those instances. But there are companies that rely on your neglecting to terminate ... There used to be something called the Columbia Record Club way back when-
Betsy Shapiro: Hey, I was in that.
Jeff Fraum: Everybody was in that because you got a bunch of free albums at the beginning, for those younger listeners, albums are what preceded CDs.
Betsy Shapiro: They are coming back.
Jeff Fraum: Actually, vinyl is coming back after-
Betsy Shapiro: And I'm coming for Columbia.
Jeff Fraum: Right.
Betsy Shapiro: I'm going to get 13 for a dollar.
Jeff Fraum: And that's how they would start, but then they'd send you a new album every month, and unless you want a whole bunch of Barry Manilow and Neil diamond that you really don't want, it would be incumbent upon you to cancel the agreement. Also, gym memberships, although some state regulations don't allow long-terms and auto-renews, and protect you on things like gym memberships, most of the time you're on your own, and most of those laws only protect you in a consumer context. So be very careful if there is an auto-renew in your agreement.
What you want to do when you read that agreement, and you understand how and when, and what it will cost you to get out of it, you may want to negotiate that. And from a consumer point of view, when you're on the buying end, the best thing you can get is a right to terminate for convenience at any time. Now, you'll probably have to have some notice period, 30 days, 60 days, 90 days, but at least you've got a right to terminate that service for any or no reason. You got a better deal, you just don't like the guy that's servicing you, whatever. That's about the best thing you can do, to make sure that you're not stuck with an unwanted contract down the road.
Betsy Shapiro: Do you really think that's successful to negotiate? I mean, sometimes we're talking about a national medical waste hauler here, and I know everyone's signing the contract. Are they going to listen to me and my requests, to have a different term in there?
Jeff Fraum: If they want your business and they want you to sign up, that is one thing you can focus on in the negotiations, and if you don't get it, you can take your business elsewhere.
Betsy Shapiro: Do you think there are other things that I can negotiate in there?
Jeff Fraum: When we're talking about getting out of the contract, one good thing you might want to negotiate is a right to assign the contract, so that if for example, someday you sell your business, you may want to assign that as part of the sale. But you probably are negotiating price and things like that. I won't say everything is negotiable, but things are more negotiable than you might think. You just have to have a little courage in yourself to negotiate. Also in negotiating, understand what it is you want and be a little firm. Don't be afraid. Tell them what you want, and let silence work for you to say, "I'm not going to do this, unless I've got a right to terminate on 30 days notice or 60 days notice," and let that lie and if they think you're going to walk away, you'd be surprised at what they can work out with you.
Betsy Shapiro: One of the things I think we're seeing quite a bit these days, are issues about data and who owns data. And I know in some contracts it's not always clear, but should I always be able to own my data?
Jeff Fraum: Lots of times today, vendors want to be able to use aggregated data, and they may not want your individual data. I would say with every contract involving data, be very careful to make sure you're not in violation of HIPAA, that you're not turning someone into a business associate, or if you are, then you have an appropriate business associate agreement in place with them.
Betsy Shapiro: Which sounds like a whole other podcast, I'm guessing.
Jeff Fraum: At least one other podcast.
Betsy Shapiro: Okay. So assuming I did not listen to your sound advice, the contract looked very lengthy and I clicked accept, or I had my front desk person sign the contract, because they're the ones who always hands over the medical waste containers. What can I do?
Jeff Fraum: Well, understand now that if you're at a point where you don't have a right to get out of the contract, there's two reasons you might want to be getting out. One is, that you feel that the vendor has breached the contract, the services have been inadequate, you haven't gotten what you were promised, and if you feel the vendor is breaching the contract, what I would say is document, document, document down the road. Send them an email the first time they are out of compliance, give them a call, and then follow that up with an email or a letter. "On July 15th, I spoke with Ms. Jones at your place, and I informed her that your service was down for two full days. Under the contract, you promised that you'd be up 99.9% of the time. She assured me that this would not happen again," or whatever.
But document each instance of noncompliance, not just a phone call, an email or a letter, so that you've got a record to get out, because if you want to get out on the basis of breach, the odds are that they will dispute it. So document down the road. If you want out for convenience or you just want to get out, I would say try and reach an amicable settlement. Try and negotiate. They may say, "Look, you don't have a right to get out for six months, but if you pay me for three months, I'll let you out." In the course of those discussions by the way, it never hurts to let them know that you know how to use social media rating sites, and Facebooks, and things like that, to make sure that they understand that holding you to your unwanted contract, may have some reputational consequences for them.
So try and reach an amicable settlement if at all possible. Now, if you just walk away from the contract, they may sue you. They may bring in a small claims court, unlikely, but maybe they will. Understand that they would have to prove damages for your walking away from the contract, although there may be a provision that they're entitled to legal fees. But when all else fails, an amicable settlement is the best way to get out, if there's no claim for breach and if you don't have a right to get out of it. They can be an annoyance, if it's a vendor that wants to give you trouble on credit rating. You don't want that. It's more hassle than it's worth, and it's probably worth a few bucks just to close the book, and your time is worth money.
Betsy Shapiro: Good points. I think I'm more of a catch more flies with sugar person, so I might say, "I know how to use social media and I'm happy to give you a good rating, if you let me out of this somehow." But threats and innuendos work too, so-
Jeff Fraum: That's two sides of the same coin.
Betsy Shapiro: I'd have to read the signs I guess, and figure out which path.
Jeff Fraum: Right.
Betsy Shapiro: I want to talk just a little bit about a word you keep using in here. You talk about breaching the contract. What exactly does that mean? Is it, if the delivery guy for the water is always messing up my reception room, and drags in dirt, and leaves the door unlocked when he delivers on days I'm not there, even though I've asked him repeatedly? Is that breaching the contract?
Jeff Fraum: It may constitute a breach. If you've drafted the contract well, you may have something in there, "That the water deliveries will be made in a professional manner during business hours, that they will not interfere unduly with your waiting room or your patients." And if you've got something general like that about how the deliveries will be made, then maybe you have a good leg to stand on. Again, document that, "I've told him not to walk through the mud on his way, or grunt while he's doing it," or something else that interferes with your waiting room, document, document, document, so that you are in a better position to claim breach when the time comes.
Betsy Shapiro: Thank you. I think these are all really good points, and despite you saying at the beginning that we couldn't get out of an unwanted contract, you've given us a couple of good ideas on how actually we may be able to.
Jeff Fraum: And hopefully those ideas are helpful. But again, the best way to get out of an unwanted contract, is not to get into it. And the second way is to understand at the beginning, how you get out of it.
Betsy Shapiro: Well, I think you've made an excellent point, that if you're going to be locked into the contract for another three to five years, or whatever the term is, it's probably worth the painful two hours it takes to go through, and read all that little tiny print, right?
Jeff Fraum: Right. And if it's a big enough contract, get your lawyer to look at it, or ask your lawyer some targeted questions about, "Hey, I think I understand this termination provision, but I'm really not sure it's penny wise and pound foolish not to get someone to look at it."
Betsy Shapiro: What if I did have my front desk person sign the contract, simply because she was the one that was there when the laundry service was coming in, and she listened to all the different pitches from all of them, picked the one and signed it, can I say that since I didn't sign it and I'm the business owner, that it's really not a valid contract?
Jeff Fraum: I had someone call me on that very point a couple of years ago, and they wanted to get out of the contract, and they said, "My office manager signed it. I never signed that contract, so I shouldn't be obligated to that contract." And I said, "Really? Has she signed other contracts?" And he said, "Yeah, she signs other contracts." And I said, "Have you objected to those? Have you told her not to sign them?" And he said, "No." And I said, "I don't think you got a really good case to stand on. You have authorized her to sign contracts, or you have put her in a position where the other party to the contract, can reasonably think that she has the authority to get out of the contract. So I wouldn't hang my hat too strongly on the argument that your office manager, or receptionist, or anybody you've put in this position, where it would appear to another party that they may have the authority. I wouldn't hang my hat on that they didn't have the authority."
Betsy Shapiro: Interesting. I don't think I will tell my front desk person that ever, because then they'd think they deserve to pay raise if they were handling contracts. So we'll just keep that between us and no one else, all right?
Jeff Fraum: Okay.
Betsy Shapiro: We're now at the part of the show, where we answer a question that we've received from a member. In the Practice Institute here at the ADA, we get them every single day, and we wanted to share some of the more frequent ones we get with our listeners. So here's one for you that ties right in. You've talked a couple times about understanding your contract, and if you don't understand your contract, having a lawyer take a look at it and tell you what it means. How do I find a lawyer?
Jeff Fraum: One way to find a lawyer is find an ambulance, and find the guy running after it. That's one way to find a lawyer. Another way, and probably a better way, is to read an article that's on the Center for Practice Success site, how to find a lawyer, which we wrote in the Legal Division to help people. The article will discuss various ways and various situations that you might want a lawyer. One of the best is recommendations of friends, colleagues, dental associations. Recommendations, it's the same way I would find a dentist if I moved to a new town. I'd ask someone to recommend.
It also depends on what type of expertise you need. If you need someone to review a real estate lease for you, probably the coach of your daughter's soccer team is fine, or go to the nearest strip mall and find a law office. If, however, it's a complaint where your license is at stake, where you're licensed to practice in that state, I would find somebody with a real expertise in administrative law or defending licenses. So it varies according to how serious the matter is.
Betsy Shapiro: Thank you. The resource that Jeff is talking about is the American Dental Association's guide to selecting a lawyer, which can be found at success.ada.org, the Center for Professional Success at the American Dental Association. It is available to members, and if you're interested, please log in and download your own copy for more tips from our Legal Division at the ADA. Jeff, you've given us some excellent pointers here and we truly appreciate your help. If there's anyone in the audience who has questions, comments, or wants to give us some feedback, please feel free to email us at email@example.com. That's one word, firstname.lastname@example.org. We want to thank our founding sponsor, ADA Member Advantage for their support, and to Sanford Media for producing this podcast. And thank you for listening to Beyond the Mouth.
ADA Legal Support and Resources
Receive a clear, concise explanation of the terms of a proposed dental provider contract with a third-party payer.
Read the considerations and official protocols the ADA uses when evaluating whether to participate in lawsuits that will or might significantly impact dentistry.
Knowing the laws that govern dental practice can help you avoid costly, time-consuming legal challenges. A Dentist’s Guide to the Law: 246 Things Every Dentist Should Know is a practical resource to address the wide array of legal issues relevant to you, your team, and your practice.
Information and insights to help you set effective social media policies for your dental team.
How to keep your practice in compliance with laws such as the federal Anti-Kickback Statute.
Learn about laws and regulations that govern how you promote your practice.
Review the ADA’s commitment to complying with all applicable antitrust laws and minimizing the association’s risk of exposure to antitrust scrutiny.