14 Issues Your Veterinary Practice Partnership Documents Should (Have) Address(ed)

What happens when you die? Will your heirs receive a fair price, or any price for your investment in the practice? Will they remain locked into that investment forever? Will your heirs collect profits from the practice? What if the other partner (who is getting paid under his practice employment contract) has voting control and decides not to distribute profits?

If your heirs are to be bought out, who sets the purchase price? How and by whom is it paid? If part of the purchase price is paid with a promissory note, is same secured? How? What if the practice is not profitable enough to pay the note?

What happens when your partner dies? Your deceased partner’s heirs are now your new partners.

Barring a fluke, your new partners will not be veterinarians. Does your State permit non-veterinarian practice owners?  Will they want to be bought out or stay and collect profits from the practice?  (Without contributing to profit generation of course.)  If the deceased partner was a large shareholder, or the majority interest holder, the heirs will also inherit your deceased partner’s voting rights.  Do you want to share practice management with, or be managed by, such persons?  What if the heirs squabble among themselves, leading to management paralysis and/or litigation? Do you fancy having the practice run by a court-appointed receiver?

If the heirs are to be bought out, who determines the purchase price? How and by whom is it paid? If there’s a note, is it secured? How?

What if you are permanently disabled? Will you receive a fair price, or any price for your investment in the practice? Will you remain locked into your investment forever? Will you collect profits from the practice? What if the remaining partner decides not to distribute profits?

If you are to be bought out, who sets the purchase price? By whom and how is it paid? If there’s a note, is it secured? How?

What if your partner is permanently disabled? Will your disabled partner want to be bought out or stay and collect practice profits (without generating any of same)? A disabled partner’s interests will be different then yours, so if he was the managing and/or majority partner, how will he run the practice? Will he be able to run the practice? What if the disabled partner is mentally disabled?

If your disabled partner is to be bought out, who determines the purchase price? How and by whom is it paid? If there’s a note, is it secured? How?

What if your partner goes nuts? You don’t want a mentally unstable person practicing veterinary medicine. But if such partner is the majority partner you can’t fire him, because he, not you, controls the practice entity. The same problem arises for equal partners. Sure your mentally disabled partner could voluntarily remove himself, but can you rely on that? What if the majority partner has a guardian? How will the guardian run the practice? What if the majority partner or guardian fires you?

What if your partner should be fired as veterinarian-employee? Suppose your partner becomes lazy or his child becomes ill and decides to work significantly less hours or stop working altogether. Suppose your partner becomes a substance abuser and consequently unfit to practice veterinary medicine. Or he steals from the practice. Or he harasses employees and/or abuses clients and/or patients.  The foregoing would be grounds for terminating a veterinarian employee.  But if your partner is the majority or an equal partner you can’t fire him (as explained in the preceding paragraph).

What if you no longer get along? Should the practice be dissolved? If not, who should leave? At what price should the departing partner be bought out? How and by whom is it paid? If there’s a note, is it secured? How?

In a 50/50 practice how are disagreements handled? What happens when each party has equal voting/management rights and a serious disagreement arises? How will the resulting deadlock be resolved?

What if your partner wants to drop out, buy a boat and sail around the world? Should your partner be permitted to withdraw? If not, how do you keep your partner from just resigning as an employee (in light of the constitutional prohibition of involuntary servitude)?

What if your ex-partner discovers he’s chronically sea-sick and comes back to set up a veterinary practice next store (using the client list he kept when he left)?

If a partner is permitted to withdraw, who determines the purchase price? By whom and how is it paid? If there’s a note, is it secured?  How?

What if your partner divorces? If the divorced spouse has, or is awarded, a portion of your partner’s practice equity interest, the divorced spouse becomes a partner. Ménages à trois make great literature and film themes but ALWAYS end badly.

What if your partner goes bankrupt? Do you fancy your partner’s creditor as your new partner? It won’t be fun to have a bank running, or having a say in running, the practice. Worse, the bank likely will want to sell your partner’s share to a competitor. 

Who’s got the land? The small animal practice’s most valuable asset is its location, because most clients won’t travel far for pet treatment. As zoning restrictions get ever tighter, good practice locations become ever rarer (and more expensive). If, as is frequently the case, one partner owns the practice premises, what happens when he dies, is disabled, withdraws, resigns, divorces and/or goes bankrupt?

What if another veterinarian wants to buy your partner’s interest in the practice? Should your partner be allowed to sell without your approval?  Should you have a right of first offer?  A right of first refusal?

IF YOUR PARTNER IS NOT YOUR RETIREMENT PLAN, THEN WHO IS? If you don’t have a firm  agreement with your partner to sell your practice interest to him (or someone else) upon your retirement, then how are you going to retire using your investment in the practice as your nest egg?  What if both partners want to retire at the same time?

Practice Entity-Which Organization Is Best For You and Why it Matters

Choosing the correct structure for your veterinary practice is an important decision with consequences reaching far into the future.  Selecting your practice structure is definitely not a “do it yourself” project.  Substantial tax, legal and accounting expertise is required.  Veterinarians nevertheless need to stay active in the process to ensure the experts’ narrow technical proposals get folded into a coherent plan that reflects your needs and goals.

  • It’s Mostly About Tax. Tax considerations are the primary drivers in choosing a legal structure for a veterinary practice.  The two key aspects are taxation of income/profits and taxation upon the sale or transformation of the practice.  Don’t paint yourself into a corner by choosing a business structure without establishing a succession or exit strategy.  Exit strategies should focus not only on your richly deserved retirement, but also on contingencies such as death or disability).  Since the transformation of an existing business structures in anticipation of a sale or the buy-in of a new partner usually triggers adverse tax consequences, it is usually better to choose an initial structure with the necessary flexibility to handle new arrivals, departures and divestitures at minimum fiscal cost.
  • Liability Shield. In some structures such as partnerships, the owners are personally liable on their individual assets for the debts of the business.  In others their personal assets generally are not at risk.  Business structures, however, do not insulate veterinarians from liability arising from malpractice claims.[1]  But the shield works for almost all other claims, which in our litigious society are increasingly frequent.  Unless you are an equine or food animal veterinarian, you generally have greater exposure to claims from your client’s “slipping and falling” in your hallway, than malpractice.
  • Flexibility and Formalities. Some structures allow more management flexibility and/or are less burdensome to administer than others.  Veterinarians generally tend to ignore formalities which is a serious mistake.  Courts regularly have looked past the liability shield and held owners personally liable when the owners have failed to observe the formalities separating their personal affairs from those of the practice entity.

AN OVERVIEW

The accompanying table compares the more common business structures from a liability, management and formality perspective (in simplified form).  Following is a brief and much simplified overview of the tax characteristics of each entity.

  1. Sole Proprietorships.  Since sole proprietorships are not legally separate from the single owner, there is no separate tax return.  The practice’s profits are included in owner’s total income and are taxed at his ordinary income tax rate.  In addition to federal and (if applicable) state income tax, the owner must also pay self-employment tax equivalent to the payroll taxes due as if the owner were an employee of the practice.

Upon the sale of the sole proprietorship practice’s assets, the IRS will recapture all depreciation/amortization deductions taken by the owner/seller thereof and tax such amount at the seller’s ordinary income tax rates.  In the unlikely event that any gain remains on the assets (after adding back any depreciation/amortization to their respective “bases”[2]) they will be taxed at the lower 20% long term capital gains rate (assuming the relevant holding period is met).

The buyer receives a “step-up” (increase) in his basis in the assets proportional to the amount of (purchase price allocated thereto) allowing him to re-depreciate/amortize them.   Thus, asset sales usually are a better deal tax-wise for the buyer than for the seller, and all other things being equal, buyers will prefer to purchase assets rather than stock (in a C corp).

  1. Partnerships.  Partnerships are “pass-through” or “flow-through” entities for tax purposes, meaning that each partner includes in his own taxable income the profits (or losses) of the partnership, which are taxed as ordinary income at the partner’s individual rate (much like the owner of a sole proprietorship).  Note that each partner’s share of partnership income is taxable each year, whether such share was distributed to the partner or retained in the partnership.  If the latter, then the partner may not have the cash to pay the tax.

A consequence of the pass-through principle is that the sale of partnership interests are treated for tax purposes similarly to the sale of the underlying assets of the partnership (i.e., the assets are subject to depreciation recapture as in sole proprietorships).

  1. Corporations.  All corporations must file separate tax returns.
  • “S” Corporations. “S” corporations are corporations that elect to be taxed as a partnership. As “pass-through” entities, profits will be taxed in the hands of the shareholders whether distributed or not. An advantage of S corporations is that shareholders may take a portion of their profits as “S corporation profit,” free of payroll or self-employment tax (i.e., subject only to income tax).  Profit corresponding to what the veterinarian shareholder would have earned as an employee is subject to payroll taxes in addition to income tax.  (Sole proprietorships on the other hand must pay self-employment tax on all profits.)  S corps are popular with veterinarians for this reason.
  • “C” Corporations. “Plain vanilla” corporations (called “C” corporations to distinguish them from “S” corps) are not “pass-through” entities and are subject to corporate income tax, usually at the 35% rate for veterinary practices.[3]  Distributed profits (dividends) are taxed as ordinary income in the hands of the shareholders.  This “double taxation” discourages the distribution of C corporation profits.  On the plus side, C corp profits are not taxed until distributed, pension plan contributions are not subject to the S corp limits, and employee-shareholders’ health benefits are not taxed.  Veterinarians wishing to maximize their benefits will choose a C corp over an S corp.

If the holding period requirement has been met, the sale of C corporation stock is taxed at the favorable 20% long term capital gains rate.  The buyer does not receive a step-up in the basis of the underlying assets since he is buying the corporation stock. (The buyer can under certain circumstances elect to treat the transaction as an asset sale for tax purposes (a.k.a. a Section 338 election).)

  1. Limited Liability Companies.  Limited Liability Companies are very quite tax-wise.  Single member LLCs can elect to be taxed either as a C corp or a sole proprietorship.  Multi-member LLCs can elect to be taxed either as a C Corp or a partnership.  Unfortunately, not every state allows veterinarians for form LLC (ie, California).
  2. A Word Regarding Real Estate.  If the practice owns its own real estate it’s better placed in a separate entity held by the owner(s) or held individually by the practices owner(s).  This allows the owners to receive rent (which will be deductible from the practice’s income).  Moreover, placing the real estate and the practice in the same legal entity frequently leads to problems because the buyer can’t afford to buy the real estate in addition to the practice.

Choosing the correct business structure for your practice is important.  Don’t treat it lightly.

SIMPLIFIED PARTIAL COMPARISON OF DIFFERENT BUSINESS STRUCTURES

(Ex tax issues)

Structure or Entity Type\Issue Liability Formalities/Flexibility
Sole Proprietorship

No entity; business co-mingled with personal assets

No liability shield

 

None.  Just open your door and you’re in practice!
Corporations (“C” or “S” Corp)  A Professional Corporation (“PC”) is identical to a C Corp in all respects except that only members of the same profession (e.g., vets) can own its shares

 

Shareholder not liable for debts/liabilities of corporation (unless “corporate veil is pierced” because shareholders fail to separate their personal affairs from corporations (e.g. by ignoring formalities) Must file documents with state secretary of state.  Formalities are the most cumbersome of all entities. Less formal flexibility re management/profit sharing issues
Limited Liability Company (LLC)

(Created to provide more management flexibility than S Corp and “pass through” tax treatment )

Member not liable for debts/liabilities of LLC (subject to piercing corporate veil doctrine) Must file documents with state secretary of state; but management, profit sharing can be flexible.
General Partnership[4] Partners liable for debts/liabilities of Partnership; no liability shield Must file documents with state secretary of state, but management; profit sharing can be flexible.
[1] Salvation lies in adequate malpractice insurance.

[2] The basis of an asset is it’s original cost to the owner, as adjusted pursuant to IRS rules.

[3] Because veterinary practices usually are personal service corporations.

[4] Limited partnerships are different from general partnerships.  An LLP generally is formed among several limited partners who are normally passive financial investors and one general partner responsible for managing the enterprise. Limited partners normally are not liable for the debts/liabilities of the LLP, whereas the general partner is.  Contrary to the motion picture business, real estate or oil and gas exploration, LLPs may not be appropriate for a veterinary practice where all the members are actively engaged in the enterprise.

The Growth Of Cannabis Derivatives Used as Therapeutic Options in Veterinary Medicine

Updated December 2018

Cannabis products in the veterinary industry have become a hot topic in the media lately and little is known about the products on the market, including their safety or efficacy. Here we will explore how cannabis products have gained popularity, the scientific backing behind treating veterinary patients with cannabis, and the legal ramifications that can result from using these treatments. Unfortunately, while cannabis may have potential for treating ailments, the products on the market are illegal as well as potentially dangerous. Therefore, veterinarians should not stock, treat with, or recommend cannabis products, as this usage could result in a formal investigation by the veterinary board in the state in which they are licensed.

Back in 2016, the Colorado Veterinary Medical Association made an official statement explaining a veterinarian’s obligation to educate companion animal owners about the potential risks and benefits of marijuana products in a way that is consistent with an appropriate veterinarian-client-patient relationship. Colorado law has not yet changed in this regard. Effective January 1, 2019, the state of California will become the first state in the nation to legally allow their veterinarians to educate their clients about the topic of cannabis treatments for their pets. For the first time, a veterinarian in California will not face a potential penalty for having the discussion.

Growth in Popularity of Alternatives to Medications

As pet lovers, it is our primary goal to keep our furry friends happy, healthy and pain free. However, in a world of ever-changing trends, how do owners know what is best for their pets and what is just the newest health fad? Traditionally, veterinarians have been sought out to help guide these decisions but, in this changing climate, reliance upon Dr. Google is becoming more common – and vet visits are becoming less so. An increasing number of people are searching for natural alternatives to medications, and opting for diets for their pets that are grain-free, raw and antibiotic-free. Pet owners are also more commonly using their own homeopathic remedies. While these trends are mainly driven by consumerism and distrust in big pharma, the growing desire for at-home remedies can result in unsafe, unethical and even illegal outcomes.

Veterinarian Responses to Fads

Veterinarians must rely upon scientific research and laws as guidance. Fortunately, with two of the more well-known fads, scientific evidence is relatively cut and dry: grains are not evil and eating raw meat can cause a slew of health problems, such as contracting salmonella. However, when it comes to homeopathic remedies for fleas and ticks, joint pain, dry skin and even neurologic conditions, the evidence is much harder to come by. This is largely due to the lack of regulations on many products that consumers are using for remedies. There are no FDA regulations, for example, on essential oils, herbs or nutraceutical pills, meaning there is no regulatory body confirming what is on the label; therefore, nothing confirming what is in the bottle.

Despite the lack of FDA regulation and any associated concerns expressed by veterinarians, the desire to use natural derivatives is growing among pet owners. And, one specific derivative is getting plenty of press lately: cannabis.

Two Types of Cannabis Compounds

Cannabis, dating back 6,000 years, is the only plant genus that contains the molecular compounds called cannabinoids. The two most notable compounds are tetrahydrocannabinol (THC) and cannabinol (CBD). While poorly divided, taxonomically speaking, cannabis is easily divided into two broad types based on the biochemical make-up. These two divisions are commonly referred to as marijuana and hemp.

The U.S. Drug Enforcement Administration (DEA) classifies Marijuana as a schedule 1 drug, which falls in the same category as heroin and cocaine. Due to its recreational use, it is the more well-known of the two cannabis plants. Marijuana contains high amounts of THC, the psychoactive cannabinoid, and low amounts of CBD, the anti-psychoactive compound.

Hemp, on the other hand, is grown for its seed and fiber properties. Hemp has low levels of THC and high levels of CBD (at least when compared to marijuana). Unlike marijuana, it is not possible to get high off the hemp plant. In fact, you would die of smoke inhalation before reaching high enough levels of THC from hemp to achieve a recreational high. This is due to the low concentration of THC and the fact that CBD is the anti-psychoactive that blocks the marijuana high. Because of that, some people refer to hemp as “anti-marijuana.”

Industrial hemp usage is legal in the United States but, oddly enough, actually growing industrial hemp is illegal. In fact, since 1937, it has been illegal to grow any variety of hemp in the United States.  Under current law, imported hemp products are subjected to zero-tolerance standards for THC, even though the average amount of THC in marijuana is 20%, while the average amount in hemp is 0.3%. Somewhat illogically, the United States government does not distinguish between these two very different plants grown for completely different purposes.

Note About State Laws

In 2017, the number of states permitting industrial cultivation of hemp exceeded the number of states that have legalized medicinal marijuana (33 versus 29 to date). So far, though, few farms have begun cultivating hemp due to resistance from the DEA. This is because, while legalized in certain states, both marijuana and hemp are illegal federally.

Cannabis for Human Medicinal Purposes

So, what is it in these plants that has led to medicinal use? About 20 years ago, scientists discovered a system in the brain that responds to the compounds found in cannabis, specifically in marijuana. The system is called the endocannabinoid system and has been shown to play a role in the cardiovascular, digestive, endocrine, immune, reproductive and nervous systems. The discovery sparked interest in finding specific chemicals in marijuana that could be targeted to treat specific conditions. Since that time, research on medical marijuana has increased significantly but, with the schedule 1 classification, doing approved research is still difficult.

While there are plenty of studies that show promising results in treating conditions, in order to officially conduct research on cannabis, scientists must first get approval from the DEA and the Federal Drug Administration (FDA).  While such studies have shown that cannabis can help manage pain and muscle spasms in multiple sclerosis, as well as improve symptoms of schizophrenia and Tourette’s Syndrome, too few of the studies were controlled clinical trials with placebo treatments.

These results have been mirrored in the series of studies permitted by the DEA at the Center of Medical Cannabis Research, University of California San Diego. The conclusion of these 13 studies was broad but simple: “cannabis may be useful medicine for certain indications.” Many researchers worried about the risk to users, though, with some patients becoming addicted (10%) and others finding the effects “intolerable.”

FDA-Approved Marijuana Drugs for Humans

Despite the unanswered questions and research-related challenges, there currently are three FDA-approved drugs made from marijuana in the United States. Marinol and Cesament are used to treat nausea in chemotherapy and AIDS patients, while Epidiolex is used to treat children’s epilepsy. Furthermore, Sativex is a drug developed in the United Kingdom that has been approved in over 24 countries to treat muscles spasms from multiple sclerosis and cancer pain, and it may be approved in the United States soon to treat pain associated with breast cancer.

Cannabis-Based Products and Pets

Because of the clinical evidence performed to date and experimental evidence by marijuana users, who have self-treated successfully, it is no wonder that people want to use cannabis-based products to help their animals. Given how difficult it is to get research approved for cannabis use in humans, one can imagine the level of difficulty involved in performing cannabis research in animals.

The most commonly used cannabis products on the veterinary market for treatment of animals all contain CBD oil. CBD can be extracted from marijuana or hemp and has claims to treat numerous disorders, including behavioral issues, seizures and pain. While many veterinarians would welcome a safe and effective new way to treat diseases like arthritis or epilepsy, lack of legality and solid clinical studies makes the situation uncertain.

Veterinary uncertainty, though, has not stopped an array of products from popping up on the market. At conferences, one can be bombarded by naturopathic vendors that appear reputable, making claims on their products that cannot be substantiated. This makes it difficult to differentiate fact from fiction and, unless veterinarians are up to date on the current AVMA and federal standards, they may be tricked into stocking these products at their practices.

In a study that that was performed by the Department of Clinical Sciences and College of Veterinary Medicine and Biomedical Sciences at Colorado State University, published in the Journal of the American Holistic Veterinary Medical Association (JAHVMA) and Scientific Report, veterinarians were assigned three objectives: find out which cannabis products pet owners purchased, their reasons for the purchase and if they perceived a difference in their pet while using the product. The results of this study included 632 pet owners (88.1% dog owners, 11.9% cat owners) who have purchased hemp products from an online site. Most of the dog and cat owners (77.6% and 81.8%, respectively) indicated that they use the hemp product for an illness or condition diagnosed by a veterinarian.

The most common conditions eliciting treatment in dogs included seizures, cancer, anxiety and arthritis. The illnesses or conditions treated in cats were comparable, with cancer, anxiety and arthritis as the most common. The most common side effects reported by both dog and cat owners were sedation and over-active appetite. When dog owners were asked about the perceived positive impacts of the hemp, they reported the highest impact in relief from pain (64.3%), followed by helping with sleep (50.5%) and relief from anxiety (49.3%).  Cat owners perceived the highest impacts as relief from pain (66%), followed by reduced inflammation (56.3%) and help with sleep (44%). This information supports the growing anecdotal stories of the effects of cannabis in pets. In addition, this information provides a platform for researchers seeking to perform clinical studies on not only the effectiveness of hemp but also the adverse outcomes associated with the use of hemp.

Interestingly, this study also surveyed pet owners about their disclosures to their veterinarian about the hemp products used. Just under half of the participants had spoken with their veterinarian about the product, with most indicating that their veterinarian responded positively (61.7%), some expressing no opinion (30.7%) and very few responding negatively (7.7%). While most veterinarians would agree that anything having a positive impact on your pet is, in fact, positive, in this case, it is still illegal. In a recent article by the AVMA titled “Cannabis: what veterinarians need to know,” the AVMA cautions pet owners against the use of chews, oils and nutritional supplements containing CBD, citing the FDA as its regulatory beacon.

Currently the FDA does not approve the use of marijuana or hemp in any form in animals because of the lack of evidence about the safety and effectiveness of the products. The DEA stated in 2017 that “cannabinoids are not found in hemp, except in trace amounts. Therefore, extracts that contain more than trace amounts of cannabinoids must be part of the cannabis plants that are defined as marijuana and regulated as a schedule 1 controlled substance.”

In all this legislation, it might appear that hemp is unfairly getting a bad name; however, the ASPCA poison control center has recently reported an influx of calls and claims that ingestion of hemp-based CBD products causes the same clinical signs as ingestion of marijuana (products containing THC). It is not known whether toxicity is due to quality control issues in unregulated products, differing metabolism rates of CBD, or varying amounts of CBD in products despite label claims. The most common clinical signs include ataxia, depression, mydriatic pupils, hyperesthesia and urinary incontinence. While rare, other signs include vomiting, tremors and seizures with multiple deaths reported due to aspiration. For this reason, the FDA and AVMA caution pet owners against using these products and the FDA has issued numerous warnings to companies that sell products containing cannabidiol.

California Exceptions

Effective January 1, 2019, veterinarians in California are legally allowed to talk to clients about cannabis and their pets. They can’t dispense cannabis products, nor can they administer them. However, a bill signed by Governor Jerry Brown in September 2018 will prevent state regulators from penalizing a veterinarian for discussing marijuana as a therapy for his or her clients’ pets.

This bill had received support from the California Veterinary Medical Association (CVMA), with the organization’s executive director pointing out that dispensaries have been selling the products, yet people couldn’t even talk to their veterinarians about whether or not they should be used on their companion animals.

The CVMA has until January 1, 2020 to develop guidelines about the specifics of cannabis-related conversations. What veterinary professionals in California cannot do includes:

  • accept, offer or solicit any renumeration with someone with a cannabis license if they have (or their immediate family has) a financial interest in the transaction.
  • discuss therapeutic potential of cannabis with a client if the veterinarian is employed by a cannabis licensee or if an agreement exists between the veterinary professional and the cannabis licensee.
  • distribute cannabis advertising in California, in any form

Conclusion

Overall, studies indicate great potential for cannabis as a treatment modality. If research was less restricted, more safety and dosing studies could be conducted. This would likely help explain, and ultimately prevent, poison-related deaths and begin to address concerns.

What is important to remember is that pet owners aren’t the people who face significant consequences for trying these products. Although it is illegal to sell products containing cannabinoids, and illegal to purchase products containing them, the only parties as of now who have been threatened to be held legally responsible are veterinarians and the cannabinoid-producing companies.

Here is just one example of how a state medical board perceives veterinary use of cannabis-based treatments. The California Veterinary Medical Board states that, while marijuana is legal for adults 21 and over, cannabis is illegal for use in animals. They go on to say that “veterinarians are in violation of California law if they are incorporating cannabis into their practices” and, if the board received a complaint regarding treatment of an animal with a hemp- or marijuana-related product, they would be “obligated to conduct an investigation and take appropriate disciplinary action if the findings so warranted.”

In conclusion, the use of cannabis products for animals warrants the attention of veterinarians and researchers and could one day be a wonderful treatment modality, but it cannot currently be recommended or stocked by veterinarians. It is suggested that both the promises and perils of medical marijuana for animals point to the need for science-based education, regulation and research. So, while we all aim to do what is best for our patients, it is most appropriate to advocate for change while remaining within the confines of the law. It is possible that one day cannabis will be a legal and accepted treatment in the veterinary community, but many steps must be achieved before then.

7 Steps To Take When Employees Refuse to Sign Disciplinary Notices

Originally Published in Today’s Veterinary Business, April 2018

You’ve created disciplinary policies and procedures that are clear, fair and approved by your attorney, and so it appears you’ve got all your bases covered. You carefully document misconduct and poor performance, discuss these acts with all relevant parties – and then an employee throws you a curve ball by refusing to sign a disciplinary notice. You really want this signature as proof of the discipline meeting, so what do you do now?

Here are seven steps you can take to get that signature and help prevent this refusal from happening again in the future. These steps also help you to protect your practice when an employee ultimately does not sign the disciplinary notice.

Step One: Stay Calm

It isn’t unusual for employees to refuse to sign notices related to disciplinary matters and there are reasonable actions you can take to manage the disciplinary process and protect your practice if this meeting later becomes part of a legal matter. The calmer you can remain, the better.

Step Two: Carefully Describe the Signature’s Purpose

At the beginning of disciplinary meetings, it’s best to first provide an overview of what’s about to transpire, which includes discussing the undesirable behaviors that led to the meeting along with any discipline that will occur. You should let the employee know that he or she will have time to review the written document detailing the situation – and that his or her signature at the bottom will only show that he or she has received the document and read it, not serve as an indication of agreement of the document’s contents.

Employees who refuse to sign typically do so for one of two reasons (or both). First, he or she may refuse because of a disagreement over the contents. Or, the refusal may come from a belief that the form is invalid without the signature. To move forward, it may be helpful to first decipher why the signature is being refused. If it’s a disagreement over the contents, see steps three and four. If it’s the second reason, see step five. In either case, armed with the knowledge found in those steps, cordially educate your employee about options available when he or she disagrees with the content and/or about the validity of the document without his or her signature.

Step Three: Add Comments and Clarifications

Many practices allow employees to add comments to the form, which can make them feel better about signing it, as they may feel as though they can provide their own points of view in writing. It is also acceptable and often helpful to have wording above the employee’s signature line that clearly states how a signature does not mean the employee agrees with the content of the document, only that he or she has read it.

If the ability to add comments and/or the clarifying statement above the signature line allows your employee to feel comfortable enough with the process to sign the document, then you’ve solved the refusal-to-sign problem. If not, read on.

Step Four: Suggest A Rebuttal

Perhaps an employee feels strongly enough about the information contained in the disciplinary notice that he or she would agree to write a written rebuttal that could be attached to the disciplinary notice. If so, this helps your practice because it demonstrates that the employee was aware of the discipline and that the practice was following its policy of progressive discipline.

Plus, the rebuttal may bring up points that practice management was unaware of, and it’s important for managers to be open to explanations given. Some rebuttals consist largely of emotional statements (“my co-worker is a jerk” or “my manager has always hated me, so why should this be any different?”) without any information of significance being given.

In other instances, though, the employee being disciplined may bring to light new information that may be relevant to the disciplinary actions being taken. Perhaps your employee will provide written documentation that alters the situation being addressed. What if he or she gives you names of witnesses who tell a different story?

If so, at a minimum, you can correct information on the form, adding and deleting details to make the form accurate. At that point, with correct information and an attached rebuttal, your employee may be willing to sign the notice. In relatively rare instances, this new information may cause you to rethink the disciplinary procedure you’ve started. If doubts are raised about the employee’s misconduct or poor performance, don’t rush through the disciplinary process. Make sure you have all the facts before proceeding.

Step Five: Employee Still Elects Not to Sign: What’s Next? 

Some employees may still refuse to sign, even after being offered the chance to rebut the statements made in writing. You could recommend that the employee write the words “I disagree” before signing. On occasion, that works.

Step Six: Employee STILL Elects Not to Sign: Now What? 

If there are two people from management and/or human resources in the meeting, add a statement to the document that details what happened in the meeting and note that the employee elected not to sign. Then have both managers/human resources representatives sign below that statement. If there aren’t two people in the meeting that represent management, invite one into the meeting at this point so you can get dual signatures.

By this point, you may feel very frustrated, but don’t attempt to force the employee to sign the notice – and definitely don’t threaten to fire him or her to increase pressure.

Step Seven: Adjust Policies and Procedures Accordingly

You may be reading this article right when you’re in the middle of a disciplinary procedure, one where your employee refuses to sign the notice. If so, then you may not be able to follow these steps exactly as written, needing to adapt them to the stage of the process where you currently are. After that particular disciplinary process is over, though, you should review your relevant policies and procedures to see what needs modified, based upon what you’ve learned and experienced to make future disciplinary processes run more smoothly.

Link to article https://todaysveterinarybusiness.com/break-the-impasse/

 

Put Some Thoughts into Personality Assessments

Originally Published in Today’s Veterinary Business, February 2018

It can be tempting to consider an extraverted person as a “good” employee and an introverted one as less attractive. In reality, people all along the spectrum can make outstanding employees.

Workplace culture in a veterinary practice is significantly influenced by the personalities of the people who work there. So, it makes good sense to gain a clear understanding of personality assessments and how they can benefit a practice.

In 2015, the Society for Human Resource Management (SHRM) published an in-depth piece about personality tests and their value in the workplace. The writer noted that as many as 60 percent of workers must now take workplace assessment tests, either as part of the hiring process or for career development purposes.

If you decide personality assessments would be a valuable addition to your practice, it’s important to discern which test is the right one. And are there downsides to the tests?

That question is easy to answer: Yes, there are downsides, as the quality of assessment tests varies widely and some of them might put the company in legal trouble. So, if you choose to use personality testing, investigate the best choice and administer the tests consistently using a policy you develop. Also, respect confidentiality.

The Big Five

The SHRM article referenced the five-factor model of personality testing, noting that a good percentage of workplace personality assessments are based on this model. It measures:

  • Extraversion
  • Agreeableness
  • Conscientiousness
  • Neuroticism
  • Openness to experience.

This model is the most extensively researched to date and is explored in “The Big Five Personality Traits,” an article by Kendra Cherry at www.verywell.com.

Research indicates that both nature and nurture — biological inheritances and the influences of a person’s environment — play key roles in developing each person’s personality. As far as behavior, this is an interaction between someone’s personality and the situation at hand. In most instances, people respond to a situation in a way that’s consistent with their core personality.

How This Can Play Out

  1. If you have employees who would land along the extraversion side of the scale, know that people who rank high in this area will gain energy by engaging with other people. So, they will likely want to talk about situations occurring at work and may speak out before thinking in depth about their comment. If the extraverted person is working with an introvert, this can present a challenge, as the introvert probably won’t want to engage in much small talk and will get worn out by socializing beyond his or her comfort level. It can be tempting to consider an extraverted person as a “good” employee and an introverted one as less attractive. In reality, people all along the spectrum can make outstanding employees, although they will likely excel and interact with other people in different ways.
  2. The personality trait of agreeableness plays out differently. Agreeable people care about others and feel empathy and concern. Low on agreeability? This person isn’t interested in you and doesn’t care how you feel. It fact, he or she might engage in insulting others. So, you want agreeable employees.
  3. Next is conscientiousness. People high on the continuum prepare for tasks, prioritize and finish on time. They tend to enjoy set schedules. People low on this scale dislike schedules and structure, procrastinate and even fail to complete important tasks. Yes, you want conscientious employees.
  4. People with high levels of neuroticism worry, feel stress and anxiety, and tend to experience dramatic mood shifts. People with low levels deal well with stress and are emotionally stable.
  5. People with high levels of openness are creative and enjoy trying new things and taking on new challenges. They enjoy delving into abstract concepts. On the other end are people who dislike change and new ideas, and they don’t enjoy theoretical concepts.

Myers & Briggs Types

One of the most well-known personality categorization tests, from the Myers & Briggs Foundation, lists 16 personality types. These are based off Carl Jung’s psychological types theory, where people can be characterized by where they fall on four spectrums:

  • General attitude: extraverted (E) vs. introverted (I).
  • Way of perceiving: sensing (S) vs. intuition (N).
  • Way of judging: thinking (T) vs. feeling (F).
  • Additional way of judging: judging (J) vs. perceiving (P).

Jung believed that, in each person, one of the four functions described above predominates his or her personality. Here is what each spectrum means:

  • Extraversion-introversion: An extravert expresses energy largely externally, whereas an introvert’s energy exists largely internally.
  • Sensing-intuition: This indicates how someone perceives information. Sensing is largely from external cues and intuition is largely from internal cues.
  • Thinking-feeling: This describes how information is processed by someone. Thinking uses logic and feeling uses emotion.
  • Judging-perceiving: This describes how the person implements processed information. A judging person organizes and follows through while a perceiving person explores options and improvises.

These four criteria form the basis of 16 personality types. Someone who is ESTJ, for example, is extraverted, senses information from external cues and uses logic, then makes decisions and acts upon them. An ISFJ, as another example, is “Quiet, friendly, responsible and conscientious. Committed and steady in meeting their obligations. Thorough, painstaking and accurate. Loyal, considerate … [and strives] to create an orderly and harmonious environment at work and at home.”

Testing for Hiring Purposes

If your intention is to use personality testing in the hiring process, make sure to choose a test that is reliable and measures stable personality traits rather than evolving traits. The test should help you compare one candidate against another. Request evidence that the test provides quality predictors about work behavior.

The Harvard Business Review, in the 2015 article “Personality Tests Can Help Balance a Team,” noted that the best personality testing for workplace purposes can highlight three different elements of personality:

  • How someone behaves at his or her best.
  • How the same person acts under pressure.
  • How this person feels inside (his or her needs, motivations and personal preferences).

Well-chosen tests, the article stated, also help a practice to profile entire groups to determine “whether the group is likely to bond or fracture by examining qualities that predict both success and failure.”

“For example,” it continued, “we know that teams with members who are open-minded and emotionally intelligent leverage conflict to improve performance, whereas neurotic and closed-minded groups fall apart in the face of disagreement.”

If you choose to introduce personality tests to your practice, remember to first develop a policy about how and when the tests will be used. Share the policy with employees when it is created and during annual policy reviews. Make sure to consistently follow the policy and let employees know when changes are made to it.

H.R. Huddle columnist Dr. Charlotte Lacroix is founder and CEO of Veterinary Business Advisors Inc. She serves on the Today’s Veterinary Business editorial advisory board.

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Listing Agreements: Key Sections and Common Issues

Veterinary medicine is no stranger to change, both on the medical side and the business side. As an example of the latter, much to the chagrin of many veterinarians, the storefronts of veterinary practices are shifting from “mom and pop” to corporate as corporations gobble up independently-owned veterinary practices in a feeding frenzy.

One of the reasons that corporate consolidation has been occurring at such as rapid rate in veterinary medicine is the demographics of practice owners. Many current owners are Baby Boomers who are on the back nine of their careers, looking to reap rewards for all the years of hard work and dedication they have put towards growing their practices by selling them. To maximize their returns on investment when they sell, many of these owners begin the sales process by hiring a broker to market their practices.

A broker is an individual or firm that works to bring seller and buyer together. In return for his/her efforts, a broker will charge a fee or collect a commission. Before acting on the behalf of a practice owner, the broker will request that the owner sign a listing agreement, which is a contract that grants a broker the authority to act as the owner’s agent in the sale of the practice.

Because a broker can be an instrumental agent in the process of selling a veterinary practice, the listing agreement that he/she presents to a practice owner may contain language that should be viewed with scrutiny. Most practice owners have little to no experience with listing agreements and so are unfamiliar with spotting potentially-detrimental language. This article highlights the key sections within a listing agreement and common issues encountered within them.

 Exclusivity

There are three basic types of listing agreements: an open listing, an exclusive agency listing, and an exclusive right to sell listing. An open listing is a non-exclusive agreement that allows the seller to hire more than one broker and only requires the seller to pay commission to the broker who finds a buyer willing to meet the seller’s asking price. An exclusive agency listing is similar to an open listing, except that only a single broker will represent the owner. In both of these types, the seller reserves the right to sell the practice himself/herself without paying any commission to a broker.

Of the three types, the exclusive right to sell listing agreement is the most commonly utilized. It is similar to the exclusive agency listing, except that the seller cannot sell the practice without paying his/her broker commission for the sale. Unless an exception is specifically noted within the contract, this type of listing agreement ensures that the broker will collect commission on any sale, whether or not he/she played any part in procuring a buyer or closing the sale. 

Duration of the Listing

Listing agreements should outline a set period of time for which the broker has the exclusive right to sell the practice. Typically, the duration of a listing is anywhere between six months and one year. This timespan is long enough to provide the broker with sufficient time to advertise the practice and solicit offers from prospective buyers, yet short enough to incentivize the broker to work diligently at bringing a sale to fruition. However, what recourse does the seller have if he/she is not satisfied with the broker’s marketing efforts during this time period? Under this circumstance, the seller would not want to wait until the listing agreement expires before being able to employ a different broker. So, can the seller terminate the listing? The answer: it depends.

In a seller’s perfect world, he/she would be able to terminate the listing for any (or no) reason, at any time, and with no prior notification. Understandably, a broker will not agree to this proposition. This is where the negotiation begins. The seller should strive for specific language to be included within the listing that allows him/her to terminate the listing immediately for good cause or with a short period of prior notification if the termination is without cause. While a broker will usually accept these terms, the broker will also typically require that he/she is entitled to collect commission on a sale made to any prospective buyer identified during his/her time advertising on behalf of the seller. In addition, a broker will want any out-of-pocket expenses to be reimbursed if the listing is terminated without cause.

Duties of the Broker

A seller who hires a broker typically is interested in selling his/her practice within a reasonable timeline. In return for spending hard-earned profits on a broker, the seller should expect to know what he/she is getting in return; however, listing agreements are often vague and lax when detailing the services brokers will provide. Avoid listings that only include language such as “The Broker shall make diligent efforts to effect the sale of the Practice and shall advertise it in such manner.” This language is vague, subjective, and does not provide the seller with concrete action items of the broker.

A listing agreement should clearly outline the broker’s duties in return for collecting fees or commission from the seller. A seller should be informed whether the fees he/she is incurring is simply for listing the practice or if it also includes other services, such as time spent actively advertising the practice or negotiating with a potential buyer. In addition, language should be included stating that all advertising by the broker must be verified as accurate and approved in advance by the seller.

Commission Amount

For the sale of veterinary practices, a broker’s commission typically ranges between 6% and 8%. The percent of the commission may be the same for both the total practice purchase price and real estate purchase price, or the two assets may each be assigned a different commission percentage. Sellers should not only look at the percentage requested by the broker when deciding if the request is acceptable, but also if the duties of the broker are well-defined and extensive enough to warrant the percentage requested.

When Commission is Paid

The trigger for payment of commission is a crucial part of all commercial listing agreements. The most common triggers include when the broker produces a buyer willing to meet the seller’s price or when the sale closes.

When a seller hires a broker to list his/her practice, he/she hopes that the broker will find buyers that are willing to meet the asking price. With this as the broker’s primary task, it is rational and reasonable that the broker would want to be paid commission once he/she procures a ready and able buyer willing to pay the seller’s asking price. However, the seller might add contingencies or conditions to the contract of sale that are not specified in the listing and over which the broker has no control, which may result in a sale not coming to fruition. The broker does not want to be penalized for a seller’s cold feet or recalcitrance.

Despite the above rationale, commission being awarded to a broker for simply procuring an adequate buyer can be an issue for a seller that does not want to sell to a particular buyer (e.g., a corporate consolidator) or if the sale does not end up materializing for some reason. With this trigger, the seller would be required to pay commission as if his/her practice was sold, even though the deal did not finalize; therefore, the seller may be pushed back to square one while also being thousands of dollars out-of-pocket. As a result, it is more advantageous for the seller if the broker earns commission when he/she procures a buyer that will meet the terms fixed by the seller, the seller enters into a binding contract with the buyer, and the seller completes the transaction.

From the broker’s prospective, he/she feels commission is earned by procuring a ready and able buyer willing to meet the seller’s terms. From the seller’s prospective, he/she only wants to pay the broker a commission when a sale is finalized. So how can both parties feel protected? A fair compromise between these two stances is reached when the listing agreement states that commission is earned only when a deal closes, except in cases in which the deal’s closing is prevented by the seller’s conduct.

Alternative Transaction

While a broker will usually agree for a deal closing to be the trigger for payment of commission, the broker may also want an additional protection included within the listing agreement that states he/she is entitled to a commission if the seller, rather than selling the practice, enters into an “alternative transaction”. This provision is usually included to protect the broker from the seller choosing to lease the property or enter into a sale of ownership interest, rather than a wholesale of the practice and/or property. Alternative transaction provisions often are complicated and difficult to negotiate because they tend to be very broad to cover many potential eventualities, but do not address any particular eventuality in detail with regards to how the broker’s commission will be calculated or when it will be paid.

Post-Termination

Brokers can worry that a seller may be dishonest and evade paying the broker’s commission by stalling until after the listing agreement period expires before entering into a contract with a prospective buyer who was introduced to the seller by the broker within the listing’s term. For this reason, most listing agreements will state that the broker is entitled to be paid a commission on any leases or sale agreements that are made with buyers specifically marketed to by the broker, even if these agreements finalize or commence after the termination of the listing agreement. This set period of time post-termination is sometimes referred to as the “tail period” or “after-look period.”

While the above provision protecting the broker is sensible, the seller needs to ensure that the provision is applied reasonably. In order for a seller to limit the applicability of this provision, he/she must know the names of the prospective buyers that the broker will claim commission on; this can be accomplished by requiring the broker to submit a prospect list. This list will include the names of the prospective buyers that the broker specifically marketed the seller’s practice to and should be submitted to the seller within a set short period of time (e.g., seven days) following termination of the listing agreement. If the broker fails to provide this list within the set period agreed upon, then the broker shall not have the right to collect commission post-termination of the listing.

In addition to requiring the prospect list to be submitted within the infancy of the “tail period,” the seller should also limit the number of names that can be included on the list. For example, if the broker sent out an email blast to his/her entire database of potential buyers or had a list of everyone that viewed a social media post he/she made advertising the practice, the seller would not want the prospect list to include these hundreds of names. The prospects should be well defined, such as to only include the names of those that viewed the practice with the broker or submitted an offer or letter of intent.

Finally, the length of the “tail period” should be considered. This period varies greatly between listing agreements and can be a major point of negotiation; typically, it ranges between three and eighteen months. A broker will push for a “tail period” to be in the upper end of this range, as it increases his/her chance of collecting commission after the listing agreement has terminated. It is not infrequent, though, that a prospective buyer is interested in the seller’s practice, but either does not have adequate funds to enter into a deal or may simply get cold feet about purchasing the practice. Therefore, a seller should negotiate for a shorter “tail period” to minimize the chance that the seller owes the broker commission on a deal that is rekindled with a previous prospective buyer without any additional help from the broker. A “tail period” of three to six months is reasonable and should typically be what the seller negotiates for.

Exceptions to the Listing

Similar to how a broker should provide a prospective buyer list to the seller upon termination of the listing agreement, the seller should provide a list of prospective buyers that he/she has been in contact with prior to entering into the listing agreement with the broker. By presenting and agreeing upon this exceptions list, the seller will not be required to pay commission to the broker if a deal is closed with one of the listed buyers, even if the deal is finalized within the term of the listing agreement. A broker may agree to this exceptions list, but will likely make the reasonable request that he/she receives partial commission if he/she is the one who negotiates and successfully closes the deal.

Indemnification

The indemnification provision is one of the most difficult portions of the listing agreement to agree upon at the negotiating table, as both the broker and the seller want the other party to cover him/her if there is a default between the parties or an issue arises that triggers liability from a third party. The broker does not want to incur liability for any accidental misrepresentation of the practice. Conversely, the seller only wants to be responsible for his/her own conduct that is contrary or negligent to his/her obligations outlined within the listing agreement.

Negotiations regarding this section typically conclude when both parties agree upon reciprocal-indemnification. Reciprocal-indemnification means that both the broker and seller agree that he/she will cover any economic loss sustained by the other party if the loss is a result of his/her actions or breach of contract. This agreement is reflected within listings that have language in which both the broker and seller agree to pay, reimburse, defend, and hold harmless the other party from and against any expenses that are incurred based upon the other party’s actions, omission, or breach of contract.

Seek Legal Counsel

While there should be a great deal of synergy between a seller and his/her broker, the seller must also recognize that the broker has an inherent conflict of interest. Since a broker usually only collects commission upon a sale finalizing, he/she is disincentivized from dealing with important issues that may slow down or compromise the sale. Because of this, a seller should seek advice from a seasoned lawyer regarding the terms of the sale. Doing so will impede an unscrupulous broker from oversimplifying the transaction to collect commission more quickly so he/she can direct his/her efforts toward the sale of another practice.

There can be considerable variation in both the form and content of listing agreements. While most touch on similar issues, how the issues are addressed can vary substantially. When entering into a listing agreement, practice owners should pay particular attention to the issues discussed above. While a practice owner may not have many qualms with the listing agreement drafted by the broker, he/she cannot predict the turns that his/her relationship with the broker will take if the selling process hits some unexpected bumps in the road. For this reason, practice owners should look at all of the issues implicated by the listing agreement carefully and with skepticism and seek legal counsel before signing one.