When deciding whether or
not to terminate an employee, and weighing the pros and cons, you need to
assess the costs and benefits of keeping this employee versus firing him or
her. Consider the following:
- the nature of the
behavior or performance issues involved
- the seriousness of these
- how this employee is
affecting other employees or clients
- how easily you can
replace this employee
- the costs of recruiting,
hiring, training and retaining a new employee
If this employee is
exposing your practice to significant legal or business risks, then the
decision to terminate the employee will be different from one where, perhaps
with coaching, the employee could potentially contribute to the company.
If the issues are increasing
the workload and responsibility of other employees, then it is important to
also consider the ripple effects that the behavior of one employee is having on
the entire practice.
This article will review the key considerations when
beginning the process of a lawful termination. Start with the question of why you
are considering terminating this employee. It is important that you can determine
the reason before moving forward with the rest of the process.
It may be tempting to
terminate someone’s employment because he or she doesn’t fit well into the
company culture, or isn’t especially likeable.
It’s easy to revert to the notion of at-will employment when that’s the
case. The principle of at-will employment means that an employee can be fired
at any time, for any reason, as long as there is not an illegal reason
involved. Some people may conclude that there shouldn’t be a problem with this termination.
An issue can develop if
you terminate an employee at will, and then that employee states that an
illegal reason was involved. In this case, the employer must prove that this
was not the situation. Unfortunately,
wrongful termination claims are not always easy to disprove. They can also harm
your practice’s reputation, breed mistrust among other employees, and lead to
Next, we will review the
- reasons for wrongful termination
- the actual conversation
- information about
Throughout this article,
we will also share strategies to protect your practice.
Reasons for Wrongful Termination Claims
One reason for wrongful
termination is employment discrimination. It can include discrimination based
on race, color, religion, sex or national origin. An employer also cannot
discriminate against an employee because of their disability, age or pregnancy.
These are all illegal reasons to fire someone. You also can’t terminate an
employee as a form of retaliation.
An employer has the
legal obligation to honor employment contracts, union or non-union, including
termination clauses. Not doing so is considered breach of contract. There can
also be an implied breach of
contract, when a company implies, either in writing or verbally, that
employment is protected.
This is not intended to
be a complete list of potential wrongful termination claims. Instead, it can be
used to show the flaws in simply firing someone, at will. There is a more
graceful way to go through the process, and when followed, it should prevent the employee from
being surprised that he or she is getting fired. Therefore, the employer is
better protected against claims of wrongful termination.
Poor Performance/Behavior Over Time
It’s important to create
and carefully follow a disciplinary policy for your practice. It may consist of
rules such as providing an employee who has demonstrated a substandard
performance with a verbal warning the first time, a written warning the second,
and probation or termination on the third. In order to have an effective
disciplinary policy, though, you’ll also need to have clear and consistent
policies about employee behavior and performance so that your employees clearly
know the practice’s expectations. The policies must be consistently enforced,
When a policy is broken,
you should follow your progressive disciplinary procedures in a timely way, and
in a way in which the severity of consequences increases if an employee doesn’t
correct the behavior. In your disciplinary meetings with that employee, you can
then share what policies were broken, why this is problematic, and the
Document every time that
you speak to a particular employee about the issue (such as lateness or
gossiping), doing so directly after the meeting and listing the following:
- date of the meeting
- specific behaviors
- policy broken
- consequence for this
- consequences if this
- employee’s responses
- date of follow-up meeting
with the employee
It is recommended that
you have another manager at disciplinary meetings. This allows one person from
the practice to conduct the conversation with the employee, and the other to
take notes and serve as a witness. Be sure to have the employee sign relevant disciplinary
documents. Following this procedure gives your employee a chance to improve,
while also protecting you, as an employer, from wrongful termination claims or
Keep in mind that each
time a disciplinary procedure occurs with an employee, the documents that you
create may ultimately end up in court. Be sure to professionally list all
pertinent details. Avoid judging or interpreting an employee’s behavior; for
example, do not comment that while George says he’s late because of traffic, the
real issue is that he’s lazy. Stick to the facts.
If your employee isn’t
breaking policies, but also isn’t meeting expectations, you can create a
performance improvement plan (PIP). This allows you to share goals and
checkpoints, while also offering concrete next steps and support. Be sure to
have the employee sign the PIP. Keep this documentation, whether disciplinary
or PIP, confidential and safely stored.
Although documenting behavior
or performance issues over time is best, sometimes it isn’t possible. For
example, if an employee steals money, becomes violent at work, or brings
illegal drugs to the workplace, then the rule that is broken is so severe that the
employee needs to be fired immediately. In that case, what’s important is that
you respond to any future situations of this severity at a comparable level of
Conversation about Termination
If the decision to fire
a particular employee has been made, then the next issue to consider is how to
have the conversation with him or her. If you’ve provided that employee with
verbal and written warnings according to your company’s disciplinary policy,
then you have increased your protection. Another option is to consult with your
practice attorney to make sure that the termination is solid. This will prepare
you in case the employee decides to pursue action against the practice.
Once you’re ready to hold
the meeting, be timely about making it happen. However, take into account if
that employee has something significant happening that day that could make your
It can help to have a
termination agenda to keep the meeting on track and provide topics to be covered.
The agenda should also include items to be returned to the employee and a
reminder to get a confirmation of the person’s current address so a final
paycheck can be mailed. Having an agenda can also help to guide all parties
involved through what’s likely to be an emotionally-charged and stressful meeting,
and help to ensure that you cover all necessary items.
Be sure that the
location of the meeting is somewhere private. Then, be direct and clear without
being harsh. Explain to the employee that after meeting with that employee to
discuss behaviors, including the issuance of verbal and written warnings, the
decision was made to separate employment that day. Be transparent and make sure
you state that the decision is not negotiable. If the employee tries to debate
the decision, don’t engage or try to justify yourself, and avoid saying
anything that could be construed as a threat.
Keep the meeting short, lasting
no longer than 10 to 15 minutes. The greater the length of the meeting, the
more potential that something could be said that could expose the practice to a
lawsuit. Close the meeting by thanking the employee for contributions made and extend
to him or her your best wishes for the future.
An important topic to discuss
is the specifics about the physical separation from the workplace. Should the
employee, for example, take his or her belongings now? Or do you plan to meet
him or her after hours to take out belongings when other employees aren’t at
work? In some cases, the employee may have missed too much work, which led to
the termination; in that case, you may want to focus on avoiding a humiliating
situation for the person. If the reason for termination is something such as
embezzlement, then your main focus would be to have the employee leave the
workplace as soon as possible. If the ex-employee has property of someone else’s
at work, or vice versa, arrangements must be made to transfer belongings.
Be prepared to answer
questions that might arise. You can’t predict what they will be, but a common question
is whether you will provide references for that person. Regardless of your
response, make sure to protect your company while also treating the terminated
employee with respect.
Prepare to provide any
relevant information about the employee such as benefits, unused vacation time,
or any severance agreement. Summarize all relevant information in a termination
letter. This dated letter should state that the employee has been terminated,
along with a brief description of why and any other pertinent details.
Afterwards, let other
employees know about the termination without discussing any confidential information
or making negative comments about the former employee. Be straightforward,
sharing information the other employees need to know, reassuring them that the company
isn’t eliminating roles. Acknowledge that, in the short term, other employees
may need to help to manage that person’s workload.
These are terminations where
employees are likely to sue the employer in connection with the termination. Some
situations in which this is more likely to happen include the following:
- employee is a member of
a legally protected class
- employee is a difficult
- employee has a relative
who is an attorney
- employee is surprised by
As far as the first
example, federal law prohibits discrimination on
the basis of age (over 40), race, color, religion, sex, national origin or
disability. In addition, individual states may have laws that are more
stringent. When terminating the employment of someone in a protected class, the
employer may be vulnerable to anti-discrimination claims for any statements
made prior to, during or even after the employee’s tenure. Examples of these
statements are as follows:
- I know it must be hard to balance your
job responsibilities with the new baby.
- Most 50-year-olds would have trouble
meeting the physical demands of this job.
Comments such as those are commonly part
of a casual conversation with no discriminatory intent, but could add credence
to a wrongful termination claim.
Other employees are difficult:
argumentative and/or obstinate. They may refuse to take responsibility for
their behavior or performance, becoming defensive and blaming others. Employers
may be reluctant to fire this type of employee, fearing confrontation or retaliation.
The practice can effectively be held hostage to this type of employee and, when
fired, the employee may respond with a lawsuit.
When employees have relatives who are
attorneys, it may make it easier for them to sue. The relative may even make the
suggestion, and if legal services are offered to the disgruntled employee at a
reduced fee, or even for free, there are fewer barriers to suing. Finally,
surprised employees may be so devastated that they legally challenge the
termination. These situations highlight the importance of carefully creating
and following policies as described.
The termination process is almost always uncomfortable, carrying with it a varying degree of legal risk for your practice. Your goal is to make the process as amicable as possible while continuing to minimize risk along the way. The recommendations in this article won’t cover every situation but should provide broad guidelines that you can tailor to your unique circumstances. It is recommended to consult with an employment attorney experienced in the laws for your state.
Read more on the WMPB website here!
phrase OSHA violations cause you to shudder in fright? OSHA, the Occupational
Safety and Health Administration, should not be a scary monster – it exists to
ensure you and your employees stay safe in the workplace. Slay the monster with
some of these low-cost fixes to common violations.
Maintain easily accessible safety
data sheets on all chemicals.
Did you know that your distribution representative has electronic copies of all
safety data sheets for products they sell? Take five minutes to ask them to
email those over, then put the sheet in a folder on every computer’s desktop.
posters can be obtained for free from OSHA! Make sure you check what other
posters are required in your state and see if those posters are also provided
free of charge. You can find the OSHA posters at this link: https://www.osha.gov/Publications/poster.html
next employee meeting, ask the staff to decide on a safe location for drinks.
It should be convenient but as far away from animal and laboratory areas as
possible. Then, purchase some stylish washi paper tape or fun paint and have a
teambuilding activity to define the new space.
of chemicals that you or your staff refills from the manufacturer’s container
must be labelled. Once you have your safety data sheets, it will only take a
few minutes to make a label. Consider using waterproof printable labels, a
laminated piece of paper, or purchased pre-printed labels specific to your
chemicals. It can seem daunting to find and label every bottle of alcohol or
jar of scrub, but why not try turning it into a game of scavenger hunt bingo
with the staff? Many hands make light work.
fixes are easier, cheaper, and faster than others. If you need to establish or
rejuvenate your training and reporting programs, we are here to help. Just get
in touch with our human resources gurus to find the right solution for you!
Imagine you’re a practice
owner, and your practice currently has a 12-year history of consistently
grossing $1.5 million—and is actually on track to earn upwards of $2 million
this year! You have three exam rooms and three certified veterinary technicians,
and you’ve just hired an ambitious associate veterinarian to bring your total
up to three full-time associates, with plenty of support staff. Your practice’s
operations are clearly excellent and the camaraderie is there but, you’re
ready. You’ve decided that enough of your life has been dedicated to the
prosperity of your practice and you want to enjoy the remainder of your life
with your family. You have made the decision to sell your practice.
meet with an attorney, create your practice’s profile, and garner the attention
of many corporate consolidators (CC) and private contractors (PC). Prior to
entertaining any offers, your attorney asks you about your plans, including
whether you’d like to remain involved in the practice, post-sale. You respond,
“I think I want to retire altogether. I love my practice and my staff, and I’ll
visit from time to time, but I’m pretty sure I want to spend the rest of my
time with my family.” Your attorney then asks about the property and you are at
a loss; you thought that once you sold the practice, the property would be sold,
too. Your attorney informs you that this is not the case and sends you home
with homework to complete, something you haven’t had to do in quite some time. Now
you have to ponder about what you want to do with your real estate if you sell
you want to relinquish or retain ownership of the real estate?
This is the first
question that any facility owner who also owns the property needs to answer
because this will dictate what language will be used in letters of intent
(LOI). You’ll need to determine whether you want to retain the ownership of the
property and lease it to the future buyer or sell the property.
If you’re looking to
relinquish ownership of the real estate, then you’ll need to determine how and
when this will change hands—and if this is your plan, then the remainder of
this article will be purely informational. On the other hand, if you want to continue
to retain ownership of the property and become a landlord, then you should continue reading.
As a third scenario, if
you currently lease your property from a third-party landlord, then your
responsibility is to inform the buyer about your current lease’s terms and help
to facilitate the transfer of the contract from your name to theirs.
the composition of the lease?
from this point on, that you’re the owner of your property and you want to
lease it to the buyer, here’s what might happen next. Typically, the buyer will
present you with a drafted lease with their terms—which likely represents their
interests—and you will have to negotiate from there. Since this will be a
steady stream of income for you, we’ve provided you with information to maximize
the revenue you’ll receive.
For clarification purposes:
“Buyer”/“Tenant” = Buyer of your practice;
“Seller”/”You” = Practice Seller & Property Owner/Landlord
Terms & Renewals
discussing the value of a lease to buyers, you’ll have to think long term,
literally. Most buyers, especially the CCs, express interest in having an
initial 10- to 15-year lease to retain a firm grasp on the practice’s property and
to ensure longevity. This may differ for PCs. You could add more value to the
lease by giving the buyer options to renew at five or ten-year increments. This
assures continued operations for the practice, allows for early renewal
negotiations, and makes it easier for you to refinance the property, if need be.
Now, depending upon your terms, you should determine how much you will charge the
buyer for rent. Typically, rent is calculated as the sum of the base rent and
additional rent, but you should also consider the valuation of your property. That’s
because the fair market value (FMV) of your property may help to drive the base
rent that you set for the buyer.
to a base rent can represent a risk for both you and the buyer. Here’s why. Your
initial lease term would be dictated by the FMV or, rather, the price your
property would sell for on the open market; however, the FMV excludes the value
your practice adds to the property. Zach Goldman, owner of the real estate investment
trust (REIT) company, Handin Holdings, states that the valuation of a piece of
real estate is therefore equal parts of art and science. It involves noting the
global picture along with (1) the structure of the specific building, (2) the
real estate market of the area, (3) the quality of the practice’s operations,
and (4) the economic reliability of the tenants (i.e., will they be able to pay
how you value your property isn’t necessarily how others will perceive its
value. As a practicing veterinarian and owner of the practice, you’ve undoubtedly
worked tirelessly to ensure the prosperity of your clinic. The sacrifices
you’ve made and the time you’ve spent developing the practice to bring it where
it is today, though, doesn’t necessarily add much value to the property itself.
Daniel Feinberg, vice president of finance at the REIT company, TerraVet
Solutions, notes that a common misconception they face when speaking to
veterinary practice owners is that they are often infusing their personal
experiences into the property value. He advises all future practice sellers to
work with REITs, like TerraVet, to help determine the value of their properties
from an objective lens; this way, as a seller, you can work on adding value to
your property prior to entertaining offers.
Once you’ve appropriately
valued your property, you can then determine how much you should charge for
your initial term of the buyer’s lease. We advise that you read the terms of
the lease provided by the buyer very carefully; CCs will typically request a
“reset to FMV” once it’s time for them to renew their lease. This can
effectively eliminate cash flow certainty during the renewal periods and,
clearly, this does not always work in your favor. Whether or not this will be
advantageous to you is highly dependent upon a number of factors, including
your geographic location. Typically, if an FMV reset is included, then an
appraisal will be needed. If you aren’t sure whether this would negatively or
positively impact you, you could create appraisal rules and limitations to
include within your lease. You’ll want to answer questions that add clarity to
and substantiates the FMV reset; these are questions such as:
- What appraisal method will be used and who
will be conducting the appraisal? Your choice or buyer’s choice?
- How will the future rent be determined?
Will it be based on the property’s best or highest value?
- Will the FMV-based rent take into
consideration the practice’s value?
These are only a few
questions that will need to be answered and you can find more information by
contacting your real estate attorney or a REIT company.
rent is the amount charged to the buyer to simply occupy the premises. It can
be calculated in a variety of ways, with the two most common methods being the
- Based upon a percentage of a tenant’s
gross revenues: This will complicate the lease because the lease parties need
to agree on (a) the method used to calculate the practice’s gross revenues; and
(b) a process to resolve disagreements.
- Based on dollars per square feet, with “square
feet” able to be defined in a number of ways: Most commonly, leases charge a
dollar per foot of either the “rentable space” or the “rented space.” The
former results in a higher rent, but will likely be refuted—and, therefore, the
latter will be more easily accepted. No matter what standard is used, you will
need to clearly define square footage.
you choose the first or second option to calculate base rent, you will likely
need to negotiate specific.
rent,” meanwhile, comprises all other costs, usually related to the facility’s
operations, that your buyer is required to pay you in addition to the base rent.
Such costs could be a security deposit (often one to three months’ rent) and
reimbursing the landlord for property taxes (monthly or quarterly). In most cases, the buyer doesn’t pay the property
taxes directly; this would typically be handled by you and then you would be reimbursed
by the buyer. You could, however, require the buyer to pay you an estimate of
property taxes monthly or quarterly in advance, subject to an annual
reconciliation mechanism. This would consolidate the buyer’s payments while
concurrently allowing you to receive a portion of the property tax amount in
of Net Leases
net leases help to define the relationship and responsibilities between the
buyer and seller. The type of net lease—single, double, or triple—determines
whether the buyer will pay, in addition to the rent, any of the following three
expenses: property taxes, property insurance premiums or maintenance costs. You
can equate the type of lease with the amount of responsibility, in addition to
the rent, that the buyer will have. Single net lease requires the buyer to be
responsible for property taxes, a double net lease will require the buyer to
pay for taxes and insurance premiums, and a triple net lease will require the buyer
to pay for all three additional expenses.
goal is to minimize your responsibilities as a landlord as much as possible. Therefore,
most leases are triple net leases. Reducing your responsibilities increases the
likelihood that the buyer will negotiate with you on topics like rent during
the initial term of the lease, liability insurance requirements, and a host of
other things. Your best option would be to require a triple net expenses lease while
only being required to cover the maintenance and replacement costs of the
property’s structural components, such as a roof replacement or maintenance of
the property’s foundation.
increases can be considered the norm in most veterinary practice leases today.
These escalations are usually based on the Consumer Price Index (CPI), produced
by the Bureau of Labor Statistics (BLS), which is essentially an average price
measured over a time range. The CPI allows for you to adjust the buyer’s rent
to accommodate the price change of the current real estate market. Most
commonly, the escalation is represented by a percentage increase over a specified
period of time. Although you are able to determine a percentage and offer it
within the lease, we typically see a two to three percent increase annually.
You can think of this as a compounding scheme whereas you will establish the
base rent for the initial year of the lease, and each year after the buyer will
pay an additional percentage. To illustrate, here is an example:
have the buyer pay a base rate of $25,000 annually during your initial ten-year
lease. However, you will add the caveat that states how there will be a two
percent escalation that will be applied to the base rate annually. This type of
increase would result in the tenant paying nearly an additional $41,000 at the
conclusion of their ten-year lease term.
provides a better, more stable and predictable method of forecasting what
income you will receive from the buyer. Ideally, you’ll consider their rent in
conjunction with the buyer’s responsibilities as a tenant, so you need to also consider
what kind of net lease you’d prefer for the buyer to have.
addition to your lease, you can also request an annual financial report of the
practice. While most landlords don’t request this information, there are many
reasons why you should. Annual financial reports allow for you to gauge the
operations of the practice and determine whether the buyer will be financially
self-sustaining. When requesting the financial reports from the buyer, they
should typically provide you with a balance sheet, profit and loss statement,
and a statement that acknowledges any changes in the financial position as well
as any supplemental details to explain the change. These combined reports will provide
an overall view of the financial well-being of the buyer, as well as assure you
of their financial stability throughout the lease term(s).
seems like a very clear and straightforward issue, right? We generally assume that
the buyer will provide the guaranty, but who exactly is the buyer? In this day and
age when most of the CCs are owned by a larger corporate parent, you have to
ensure that the buyer who is purchasing your practice can provide a guaranty
for your lease. The company backing your lease could range from, say,
Midwestern Pet Hospital, a single hospital with a limited, regional reach, to Animal
Hospital Operations, a generally well-known company with multiple hospital
ownerships. If you did your due diligence, you would discover that Animal
Hospital Operations is owned by Krispy Kreme, a company with the financial
assets to assure you they are committed.
order for Krispy Kreme to provide you with stability, using that example, you
would need to confirm that their name is listed in the lease agreement. In
comparison, a review of financial statements shows that Midwestern Pet Hospital
has had a fluctuating history of financial stability and only within the past
three years has begun producing competitive revenue. Which buyer would you
choose to back your lease? You’d likely selected Krispy Kreme and rightfully
so. The point here is that you should always ensure that the buyer can either
provide a corporate guaranty from their parent company or can provide enough
evidence to convince you that they can uphold tenant responsibilities and,
essentially, foot the bill.
assignment clause in a lease essentially allows for the tenant to transfer the
lease, and all associated tenant responsibilities, to a different entity.
However, this is typically an area that you as the landlord will want to
specify and limit. Commonly, CCs like to freely transfer their leases to any
affiliated entities, which would almost certainly diminish the value of your
property for multiple reasons. First, if the buyer was allowed to sublet or
freely assign the lease, then they would receive the revenue generated from the
sublet, not you. Second, if the tenant isn’t up to par, then the value of the
property itself could be driven downward. Therefore, it’s in your best interest
to add provisions to prevent this free assignment. For example, you can
negotiate by stating that the buyer can only assign their lease to a guarantor
with a net worth that is equal to or greater than the existing guarantor. This
ensures that your property’s value does not decrease and that the tenant
responsibilities are financially accounted for.
there any outstanding rights of first refusal or offer (ROFR/ROFO) with your real
ROFR and ROFO concept can be off-putting for many buyers and could severely
diminish the quantity of offers you may receive. To explain, there are many
variations on a theme when discussing ROFRs and ROFOs, but they all center on
the fact that, as the seller, if you receive an offer to purchase the property,
you are legally bound and required to send notice of the full offer to whomever
holds the ROFR/ROFO. If the offer is incomplete or if you don’t give the holder
sufficient notice of the offer, you have now made yourself, as the seller,
vulnerable to one of two scenarios:
- being sued for failing to protect the
rights of the ROFR holder
- losing the interest of the buyer because
the ROFR holder didn’t respond or didn’t receive the notice of the full offer
with enough time to respond
some instances, there’s the ROFO, which is currently defined as “an offer made
in good-faith” by the seller. This means that the seller will inform the holder
of a reasonable offer before any official listing of the property or
entertaining of such offer. The holder can either refuse or accept the offer. With
a right of first refusal, the ROFR holder can opt to match or counter the
buyer’s offer. This leaves you vulnerable to losing your initial buyer’s
interest because the buyer won’t, or can’t, raise their offer to purchase the
estate. Your practice facility’s future is subject to the demands of the holder.
You can choose to accept their offer or remain the landlord. As you can see,
the impact of the ROFO/ROFR can be quite significant; therefore, you should carefully
review any and all documents for such a clause.
are your expectations of the buyer?
a practice owner preparing for the next step, it is important that you think
about your lease, your practice, and your future, post-sale. You have to
determine what responsibilities you are expecting the buyer to take on and be
willing to negotiate those from the
very beginning. Knowing what terms of your lease are non-negotiable from
your perspective before you begin the bidding process could prove to be
advantageous because you can provide them with your terms and negotiate from
there. With respect to the lease obligations, the buyers can’t change the terms
of the deal or alter the purchase price later in the process because you’ve
already informed them of your lease terms and have negotiated the obligations
at the start. Informing your buyers of what the lease terms are in the
beginning and having that full transparency gives you the most leverage to
guide the conversation how you see fit.
what does all of this mean?
are numerous points to consider prior to the sale of your practice to prepare
you for negotiations. The process of
selling your practice can be long, and it can easily be extended if you have
not addressed your personal, practice and/or property needs. Many sellers are
not prepared to deal with a facility lease when they sell their practice, but
doing your homework now can give you the knowledge and confidence to negotiate
a lease with your buyer that will benefit you for years to come.
- Lacroix, Charlotte. “Property Lease
Dangers, Part I” | Real Estate, 2012, Veterinary Business Advisors, Inc. http://veterinarybusinessadvisors.com/wp-content/uploads/2016/07/Property_Lease_Dangers_Part-1_2012.pdf
- Lacroix, Charlotte. “Property Lease
Dangers, Part II” | Real Estate, 2012, Veterinary Business Advisors, Inc. http://veterinarybusinessadvisors.com/wp-content/uploads/2016/07/Property_Lease_Dangers_Part-2_2012.pdf
- Lacroix, Charlotte. “Negotiating a
Commercial Lease” | Real Estate, 2018, Veterinary Business Advisors, Inc. https://veterinarybusinessadvisors.com/negotiating-a-commercial-lease/
Gregory G. “A primer on real estate options.” Real Property,
Probate and Trust Journal (2000): 129-195.
Lowell, ed. Blackwell’s five-minute veterinary practice management
consult. John Wiley & Sons, 2013.
- Bank, LiveOak. “Veterinary Acquisition Due
Diligence.” Veterinary Practice Acquisitions | Due Diligence Services |
Mergers, 2017, www.veterinariancpas.com/acquisition-due-diligence.htm
- Stein, Joshua “The Most Important Issue in
Every Ground Lease: Rent Resets and Redeterminations, Fair Market and
Otherwise” New York State Bar Association | Real Estate, 2018, http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=86403
- McCormick, David; Mamalis, Leslie.
“Monitoring Practice Profitability” Veterinary Hospital Managers Association
2013 Annual Conference, https://cdn.ymaws.com/www.vhma.org/resource/resmgr/imported/MonitoringPracticeProfitablityfinal.pdf
- Bank, Live Oak. “Veterinary Practice
Acquisitions Guide 2018” Veterinary Practice Acquisitions | Acquisitions, 2018,
Bureau of Labor Statistics. “Writing an Escalation Contract Using the Consumer
Price Index”. Real Estate. November 2012. Beyond the Numbers, Volume 1, Number
As the presence of corporate consolidators in the veterinary field increases, it has become even more important to understand what to look for when negotiating an associate contract with a corporate practice. Generally speaking, corporations can have a significant edge in negotiations because they can cause you to believe that their contracts are non-negotiable. They may, for example, say the following: “This is our contract for everyone.” In reality, everything is negotiable, and it’s your value that allows you to negotiate your own contract.
While it’s true you may have less negotiating power with a corporation than with a private practice, you will have more legal protection under the employment laws with a corporation. Ideally, all contracts should be reviewed by an attorney or translator experienced in reviewing veterinary employment agreements, because contracts are intended to prevent miscommunications in the future. Below are some key points to consider when negotiating a contract with a corporate consolidator (“CC”).
1. Term and Termination: How long will it be until your contract expires? Does the term automatically renew at this time? Note that, if a contract has a one-year term, that does not guarantee you a one-year employment. The employer may in fact have the ability to terminate you sooner. CCs like to use the term “at will,” meaning they can fire you at any time for any reason. Other ways of termination would be “without cause” with both parties agreeing to give “X” number of days’ notice before termination. Many CCs, though, will not want to give you advance notice, especially if they are taking over a new practice.
2. Schedule: How many scheduled hours per week are you required to work? Beyond that, how many additional hours must be spent calling owners, overseeing patient care, and more? Are there any required emergency hours? What about holidays, weekends, and nights? CCs tend not to give exact number of hours to be worked. They tend to use language such as “minimum of 40 hours” as opposed to “from 35-45 hours.” Specificity is against the interests of the CC.
3. Duties: What, as an associate, are you required to do? Review this, because some CCs may require you to do additional work that you didn’t need to do for old management. Do you, for example, have to organize staff meetings? Participate in marketing? Handle emergencies during work hours? Being specific in the contract almost always benefits the employee. Note that private practices tend to be more willing to mentor you in these duties than CCs.
4. Compensation: Typically, compensation is paid by salary, commission (production), or a combination of both. How is your production calculated? Do you get production reports? Are there any deductions from your salary and, if so, what are they? Is there negative accrual during slow production months? CCs can change how they calculate their production pay. If you’re not aware of how you get paid, you may not realize why your production pay has changed.
5. Benefits: Most practices offer some sort of benefits package, and CCs typically offer larger and better packages than private practices. However, these benefits can be subject to change and are not guaranteed by the employer. CCs tend to comply with state and federal employment laws that govern how benefits are given, while private practices may not, due to lack of knowledge. These benefits are tax deductible and are not calculated as employee income. Therefore, there is a large savings to be gained with a larger benefits package. This usually includes but is not limited to health insurance, professional liability insurance, and retirement benefits. Note that, if a CC offers malpractice insurance, it often does not cover license defense.
6. Exclusivity: Employers will usually require you to perform services for their hospital alone. This would prohibit you from doing any shelter or relief work on the side. This may even prohibit any other type of job, even if not related to veterinary medicine. CCs are no exception here, and you must negotiate specific exceptions if you wish to work outside of the CC.
7. Performance Evaluation: Will you be provided written or oral evaluations? When? Does this correlate to compensation?
8. Signing/Relocation Bonus: In today’s market, veterinarians are valuable and most places will offer some kind of sign-on bonus. CCs can usually offer a significantly higher bonus and, depending on where you are coming from, often offer a significant relocation allowance as well. Most of these bonuses are tied to retention, meaning you must work there for a predetermined amount of time—perhaps one year—to keep the bonus. If not, the money must be repaid. Also, in your contract, it’s important to find out if the bonus can be kept if you are fired without cause. One perk of working for CCs is that, if you are moving, they can often help you to relocate to another one of their locations, which can make the process significantly easier.
9. Non-Competition: The agreement states that the employee will not directly compete with the employer after termination of employment. The provision must state a specific distance and time (e.g., two years, ten air miles). This area should cover where 85% of the practice’s clientele comes from (trade area). When does your non-compete kick in? When does the non-compete become enforceable? CCs often have a much stricter policy than private practices. For example, some do not allow you to work in proximity to any of their hospitals. This could easily double or triple the area you could be prohibited from working in and can change if new hospitals open up. Also, the scope of restricted activity may be broader with CCs. In addition to small animal medicine, they may include intellectual property, research, practice management, and so forth.
10. Non-Solicitation: This agreement states that the employee will not try to poach other employees away from the business to work elsewhere. This would apply even if you are outside your non-compete area. It is important to also know that some CCs will not allow you to solicit employees from any location of theirs, even if you don’t personally know them.
11. Assignment: There is currently a very active market for the sale of veterinary practices. Many employers include provisions that allow your original contract to be signed over to the new owner. This means the buyer would not need to negotiate a new contract with you. It is important to check for this provision, whether you currently work for a private practice or already work for a CC.
It is important to understand all aspects of your contract while negotiating your associate contract to decrease any confusion during and after your contract period, whether a private or corporate practice. With the rise of corporations in the Veterinary industry, it is also important to note the differences between what a private practice and corporation could look like relating to an associate contract.
Try to make the contract as specific as possible so there is no ambiguity if an issue arises. Ask as many questions as you need prior to signing to clarify what exactly your job will entail. Always have the contract reviewed by a lawyer familiar with the field and do not feel pressured to sign prior to this. Corporations may be pushy and imply they do not negotiate, but this is your well-being and livelihood, not theirs. Know your value and pursue it in any contract.
Turnover among veterinary specialist associates is caused principally by the failure of practice owners and employees to properly articulate their respective expectations and negotiate and document the employment relationship. Time and effort invested up front will help avoid mismatched expectations, misunderstandings and separation down the road.
Can the practice even afford another full-time veterinarian? Management consultants estimate that a small animal practice vet needs to produce a minimum of $180,000-$250,000 gross income (excluding OTC product sales) to be worth his salary. This number is far greater for veterinary specialists…..probably at least 3 times.
- WHAT IS AN EMPLOYMENT CONTRACT? A contract is a set of bargained for promises between two or more people, where one party promises to do X in exchange for another party’s promise to do Y. Courts require that an enforceable promise meet certain conditions. For example, the parties must be of age (no minors), of sound mind, and not under duress; there must be no fraud or mutual mistake over an important aspect of the transaction, and the deal must not be so one-sided as to be “unconscionable.”
Consideration. To distinguish binding promises from charity or gifts (you can’t sue Santa Claus because he didn’t give you enough presents last year), the law requires that the party to whom the promise is made give “consideration” for the promise in the form of a benefit to the promissor and/or detriment to the promisee. Thus, Dr. Specialist promises to work 40 hours per week in consideration for an annual salary of $125,000 (i.e., a benefit to Dr. Specialist and detriment to Dr. Owner ). Dr. Owner promises to pay such salary to Dr. Specialist in consideration for Dr. Specialist’s labor (benefit to Dr. Owner and detriment to Dr. Specialist). Consideration exists for each promise which is therefore enforceable.
Avoid Oral Contracts. Oral contracts generally are binding only if their performance lasts less than a year, because the law assumes that the parties’ recollections of what was agreed to become unreliable over time, increasing the tendency to remember events in a self-serving way. Few disagreements are less productive than the “you promised X,” “I don’t remember X but you promised Y” litany. Prevent such wasteful bickering by always insisting on a written contract, regardless of it’s term.
- CONTRACT FORMATION. Legal theory provides that a contract is formed once an offer is accepted. Real life usually is a lot messier.
Offer An offer can be oral or written (e.g., employer advertisement in a professional journal, on a bulletin board or mailed to the applicant). Typically, the prospective employee will ask for clarification and wish to change the terms of the original offer by making a counter-offer. The employer counters such counter-offer with his own counter-counter-offer. This confusing and frustrating process continues until either the parties reach an agreement or, realizing they can’t make a deal, go their separate ways.
Acceptance Legally, the contract is formed as soon as the offer is accepted. This can be a trap for an impulsive party who accepts an offer, but who later asks for “just one more thing.” After acceptance, it’s too late and the other party can sue for damages if the impulsive party doesn’t perform his or her obligations under the originally accepted offer.
Ideally, an accepting party will clearly indicate his acceptance to the offering party, at best by signing an employment agreement or acknowledging acceptance in writing on the offer. More difficult to prove, but still unambiguous is an oral “I accept” or words to that effect.
Avoid unclear contract formation situations. Courts have created the so-called “action in reliance” (promissory estoppel) doctrine to find enforceable contracts even when one of the parties thought no contract existed. Courts have found valid contracts in cases where an:
- employer knew or should have known that the employee had acted “ in reliance upon the offer” such as incurring expenses to move to the job location, searching for lodging thereat, and informing other employers they no longer are job applicants; and
- employee made the last offer or counter-offer, and such employee knew or should have known that in reliance thereon, the employer ceased advertising for the position, informed candidates that the job was filled, or bought new equipment or hired additional support staff in anticipation of the employees arrival.
Accordingly, a party considering an offer should not talk or act in a way it knows or should know will lead the other party to believe that such offer was accepted and should make sure that the other party is not taking action “in reliance” on anything it did or said.
III. CONTRACT TERMS. Assuming that the offer, counter-offer, counter-counter offer, etc. ballet results in the bliss of acceptance, the employment contract terms contain the nuts and bolts of the “meeting of the minds” of the parties. Following is a list of the main questions addressed in a proper employment agreement:
- How Long? Is there a fixed term (period) of employment (six months, one year, two years, or is it “at-will” (i.e., the contract continues until a party decides to terminate it)? Is the term automatically renewed on the expiration date?
- Work Schedule. How many scheduled hours per week must the employee work, and beyond the schedule, how many additional hours will employees actually spend phoning clients, performing diagnostics, interpreting laboratory work, overseeing patient care, etc. What is the schedule for any required emergency work? Is it equitable?
- Duties. What are the associate’s responsibilities? May employees decline (without penalty) to perform procedures they deem ethically wrong? How much emergency duty is required? Will they be required to visit rDVMs, engage in marketing activities?
- Compensation: How Much? Is It Enough?
Serious job applicants must know the relevant “comparables” in their labor market, i.e., what compensation is paid to other starting associate veterinarians in the area were they are seeking employment.
Is it Enough?
Currently, the salaries that are being paid to different specialists is not well documented. The AAHA/Care Credit 2005 Specialty & Referral Veterinary Practice Benchmark Study and ACVIM proceedings from the Hill’s Practice Health Symposium, titled “Insights on Veterinary Specialty Practice Productivity” are a sampling of the few publications that have salary figures. Regardless of the trends, however, debt ridden veterinary specialists cannot assume that current salaries will permit them to survive (let alone live comfortably). So the first question isn’t really “how much are they paying?” but rather “what do I need to pay my debts, buy cold cereal and go to a few movies?”
The only way to answer this question is by doing a budget. Budgets undoubtedly are one of the most boring tasks in the world, but boring beats finding out that you can’t make ends meet six months after you’ve been hired. Technology has reduced the pain of budgeting, so there is no excuse for not doing it. Any financial software program worth its salt will permit veterinary graduates to establish a budget. See attached form to assist in determining one’s budget. You can also do a budget on the following website: Personal Finance Simulator 2011(www.finsim.umn.edu)
Tips for Making More Money
As discussed below, a common way for associate veterinarians to increase their compensation is to join a practice, which pays them a percentage of the collected income they generate. Other ways include working additional shifts, and working at another practice is the employer will permit it.
Compensation Types: Flat Salary, Percentage Income And Performance Bonuses
Generally, there are three types of veterinary associate compensation: (1) flat salary; (2) commissions based on a percentage of the income generated by the associate; and (3) a hybrid of flat salary and commissions.
Flat salary (a fixed amount per year), is a common form of associate compensation. A fixed salary provides the veterinary associate with the security of a predictable income. It is also simple to keep track of. Associate veterinarians earning flat salaries, however, cannot increase their compensation, no matter how much income they generate for the practice or how hard they work. Flat salaries are not preferred by new graduates looking for the opportunity to increase their compensation in exchange for a greater contribution to the practice.
The straight commission system simply replaces the flat salary with a commission. The straight commission scheme link the dollars veterinary associates earn with their contribution to practice revenues. Because practice revenues (and the commissions) will vary month to month, associates will have a more difficult time managing the repayment of their student debt.
Under a hybrid compensation system veterinary associates are paid a guaranteed base salary plus an income production bonus equal to the percentage of the collected income they generate in excess of a certain target. The base salary provides security, as well as a predictable income stream with which to service student debt. This is a significant advantage over the straight commission system.
Production Compensation Pitfalls
While production compensation usually permits new graduates to increase their compensation, the system does have its problems and pitfalls. By carefully examining practice operations and asking the right questions, prospective associate veterinarians should be able to either avoid these pitfalls or at least reduce their impact.
- Assigning Cases and Receptionist Gate Keepers.
- Staff Efficiency and Leverage.
- Data Processing and Definition Issues.
- Competition and Distrust Among Veterinarians.
- Employee Benefits. Practices usually offer at least some of the employee benefits described below to their employees. The cost of many benefits (such as health, professional, and disability insurance, qualified retirement plans) are tax deductible business expenses to the employer and are not included in the employee’s income, resulting in a savings to the employee of 25 to 40%. Not taking advantage of this juicy gift from Uncle Sam is wasteful. On the other hand, employees must realize that the practice probably can’t afford all the benefits they desire.
- Health Insurance. Does the employer offer health insurance? If not, what does the employer do when he gets sick? If so, what kind of medical plan is it (e.g., fee for service, HMO, PPO)? What about pre-existing conditions, vesting, eligibility, deductibles and co-payments?
- Disability Insurance. Employees at age 25 have a 58% chance of becoming disabled for more than three months (with an average disability duration of three years), so employees need disability insurance to protect their greatest asset: the ability to work. If the employer does not offer disability insurance, employees are well advised to get it on their own (after asking, of course how the employer, protects himself or herself against disability).
- Professional Liability Insurance. Do employers pay the premiums on the employees’ professional liability insurance?
- Retirement Plans. Has the employer established a retirement plan for the employees? (Profit sharing plans are the most common type of retirement plan offered by veterinary practices.) When do employees become “vested” or “eligible?” If the employer does not offer a retirement plan, employees will need to save on their own (and that means more than just the annual IRA contribution).
- One week? Two weeks? More? How many consecutive days may be taken? How much advance notice must be given? May unused vacation days be carried forward to next year? How are vacation days paid for percentage compensated employees?
- Sick Leave and Disability. Does the employer offer paid sick leave? Disability leave? After how long can disabled employees be terminated? May unused sick days be carried forward?
- Continuing Education. How many CE leave days are granted and are they paid? To what extent do employers reimburse CE expenses?
- Association Dues. Are national, state, local and specialty veterinary association dues reimbursed?
- Veterinary License Fees and DEA Registration. Are these fees paid by the employer? Should the employee register with the DEA so she is permitted to prescribe and order controlled substances (rather than just administer them under the supervision of a DEA licensed veterinarian)?
- Relocation (moving) expenses. Most corporate and government employers provide some form of moving expense. Sometimes a “signing bonus” or short term loan can cover all or part of these costs.
- Vehicle allowance or mileage payments. Employees using their personal vehicles for practice business should be reimbursed for a pro-rata portion of their insurance, general maintenance, registration and inspection fees, fuel, repairs, depreciation, and lost opportunity costs.
- Performance Evaluation. Will the employer provide written and/or oral performance evaluations? How often? Will these be used to modify compensation?
- Non-Competition. Many employers require their employees to sign non-competition clauses (also called restrictive covenants) forbidding terminated employees from competing with the employer. Such clauses must be limited in time (e.g., 2-3 years after termination) and geographic area (e.g., 25-50 air-miles from the practice) to be enforceable. The precise limits on the scope of such clauses vary from state to state. Specialists typically have a larger radius as the trade area for specialty practices is much larger than a generalist’s.
- Termination. Does the contract have a specific term (e.g., “this agreement will expire after one year”) or is it employment “at-will”, in which case, either party can terminate the relationship at any time, for any reason? Contracts with no term are deemed to be “at-will” in most states. If there is a term, then an employee leaving or an employer firing before the term would constitute a breach unless the contract provides otherwise. Most contracts which provide for termination before the expiration of the term require that the terminating party give advance notice (e.g., 90 days) to the other party. Such contracts usually also contain a list of situations (e.g., suspension of the associate veterinarian’s license) permitting the employer to fire the employee at any time without notice (a.k.a. termination “for cause”).
Employees should make every effort to leave their employer on good terms even if they are not requesting a reference. The veterinary industry is quite small, and an employee’s reputation can easily suffer through casual conversation among colleagues.
- LAWYER REVIEW. Negotiating and drafting an employment contract can be long, painful and complicated. It therefore makes as much sense to seek professional help in this endeavor as it does to take a pet to a qualified veterinarian when it is sick. Lawyers are expensive, of course, just as much as veterinarians…
In today’s times, employers are finding that they need to make their workplaces as appealing as possible to recruit and retain employees. In the past, it may have worked reasonably well for a company to advertise for employees, interview candidates, select the best ones, and then tell them what benefits were available.
Today’s reality is quite different, with new employees now having certain needs and desires that aren’t necessarily the same as those valued by Baby Boomers. Although employers are still interviewing job candidates to find the right person to hire, quality employees are also using the interview process to decide which company is the best fit for them.
This may be even more true in the veterinary industry than in the overall workforce, as the shortage of veterinarians, nurses, and technicians becomes even more acute. Here are insights into four benefits being desired today.
Although quality employees are still willing to work hard, today’s graduates greatly value life-work balance. One recent Gallup survey indicated that 53 percent of employees today place a premium on this kind of balance and, as new graduates continue to come into the workplace, that number is likely to continue to increase. Because this balance was found to be even more valuable to females, this benefit is especially important to note in industries that are often female-dominated–such as the veterinary industry.
Because of this shift in values, practices that want to attract an all-star team will need to consider how they can incorporate flex-time schedules. This can feel challenging, given that patients typically need to be treated in the same room as the veterinary professionals, making it difficult to allow employees to simply telecommute.
Instead, practices may need to provide more flexibility within the jobs themselves. For example, practice managers can focus on matching up job responsibilities with the interests of each employee. Or, it could mean allowing employees to swap positions on certain days to give them variety in what they do, which can help to strengthen teamwork.
One of the most desired ways to offer flexibility, though, will be to help employees accommodate their personal schedules and needs within a workweek. For example, how can you facilitate shift switching in a way that covers the needs of your practice but allows employees to meet demands from their personal lives? How can you adjust start times or lunch breaks to accomplish the same objective?
Is it possible to rearrange schedules to allow employees to have four-day workweeks? That’s another perk that’s increasingly in demand today.
A 2015 Workplace Trends study showed that flexibility was named the most important benefit by 75 percent of employees. Organizations who help to provide that flexibility have benefited in the following ways:
- improved employee satisfaction (87%)
- increased productivity (71%)
- retained current talent (65%)
Plus, 69 percent of the workplaces surveyed use flex-time options in their recruiting, with 54 percent of them believing this had a positive effect on recruitment.
Learning Stipends/Continuing Education
Learning stipends are cash benefits offered to employees that they can use for professional development or continuing education. Many employees today want to continue to learn—with one study showing that 87 percent of Millennials consider the opportunity to continue to grow and develop a key benefit. In turn, this lifelong-learning, more educated workforce can provide significant benefits to the veterinary practice.
Encouraging a learning mindset in your practice culture, and helping to provide educational opportunities not only helps your employees to grow personally, but also in a way that makes them even more valuable to your practice. If providing learning stipends to employees isn’t practical for you, then find out what employees feel they want to learn more about and provide workshops. One example of this option would be organizing lunch and learn events at your practice.
As a related desire, employees today often want to know that they will be mentored by an experienced person in the industry. This can mean someone who will help to navigate the new hire through the workplace culture, and/or to understand policies and procedures. Each person may have slightly different needs when it comes to mentoring, but it’s an in-demand benefit, one that can boost the strength of the practice when handled well.
Mentoring helps transition new employees into a particular workplace and, the more quickly that a new hire feels comfortable and part of a team, the more likely that he or she will want to stay at that job.
Also, consider incorporating reverse mentoring, where the new hires help to mentor more established employees in areas of their expertise. This concept was created in 1999 in General Electric, with many other prominent companies adopting the program.
One of the key benefits experienced by one such company is that they experienced a 96 percent retention rate for the Millennials involved in reverse mentoring. These employees felt valued for their contributions to the company, and this gave them a chance to work more closely with senior employees. This can also help to create a more diverse workforce and pipeline of incoming human resource talent.
Finally, though reverse mentoring, younger employees can help more established ones to stay on the cutting-edge of technological opportunities that may benefit the practice. One large insurance company pairs older IT employees with new ones to discuss best practices and key trends, and to otherwise maximize potential of the company.
What’s important to think about is how reverse mentoring might benefit your practice. Reasons may not be the same ones as those at the large companies being referenced in this article—and they may not be the exact same ones as the veterinary practice down the street. It’s important to think about your business and workplace culture needs, and then create corresponding pairings and reverse mentoring structures.
New employees in the veterinary industry will likely perk up their ears when they hear that a certain employer has invested in or has access to the best technology to treat their patients. Tech-enabled workplaces are simply more appealing to many of today’s job candidates. And, the use of technology to recruit and retain star employees can go way beyond the technology used to care for patients, helping to create an engaged workforce.
You could, for example, provide quality continuing education through the use of online courses or a training and development center that employees can self-access. Gamification in training may well appeal to the younger generation at your practice, creating a fun way to raise the bar on what employees are expected to know.
With gamification, training is provided in an interactive, engaging way that uses elements of games to help users immerse themselves in the experience. If this idea is new to your practice, this ties back into a previous strategy to use; you could ask your new employees to reverse mentor the team on the use of gamification e-learning.
Technology can help employees to collaborate and communicate, with conversations stored for future reference. You can use the power of your website to share your workplace culture with potential employees, letting them see how you understand their needs and focus on finding ways to fulfill them as, collaboratively, you build the best veterinary practice possible.
To maximize your practice, it’s important to stay in tune with what new employees desire. This can happen by reading industry reports, reviewing human resource surveys and studies, talking to your current employees, and using your interviews of new employees as opportunities to also learn more about what benefits and workplace cultures are important to them.
You will likely find that work-life balance, continued learning, mentorships, and technology are discussed. You may also discover new ways to effectively recruit and retain the ideal veterinary team that will allow you to compete in the industry and provide quality patient care.