Shelter Veterinarians Are Not Sheltered From the Law ©

The American Society for the Prevention of Cruelty to Animals (ASPCA) National Outreach department estimates that there are anywhere from 4-6000 animal shelters in the United States. [1] While veterinarians who work in the animal shelter environment face the same legal issues as general practitioners who provide their services in private practice, some areas of the law are more likely to impact how shelter veterinarians practice veterinary medicine as compared to their general practitioner colleagues.  Working with shelters provides veterinarians with an opportunity to have a huge impact on the quality of life for these homeless animals. Veterinarians who choose to work or volunteer in shelters must be aware of the elements of the veterinary practice act and other legal requirements that apply to shelters, including OSHA, DEA, animal cruelty laws etc. Veterinarians should also seek indemnification for the services they provide. 

There is no federal regulation of animal shelters; only a few states have guidelines or laws governing how they operate. Therefore veterinarians may be the best advocates for assuring quality care is provided. The range of activities undertaken by shelters today, regardless of whether they have animal control contracts or not, almost demand involvement from veterinarians in order to be successful, yet in most cases there is no requirement for shelters to employ or consult with veterinarians in their day to day operations. 1  Shelter veterinarians often are employed by organizations formed for purposes that are generally ancillary to the private practice setting.  These purposes include “adopting out” animals to the public, educating owners about the responsibilities of pet ownership, investigating suspected rabies and animal bite cases, handling abandoned animals, providing behavior consultations to new pet owners, investigating animal cruelty cases and instituting animal population control programs, which, in each case, may give rise to challenging legal dilemmas for shelter facilities.  What follows are some of the areas more likely to generate legal concerns.

I. Pet Adoption

Prior to adopting out animals, shelters and shelter veterinarians should take reasonable measures to ensure that animals put up for adoption are free from zoonotic diseases[1] and behavioral problems which could potentially result in human injury.  Since medicine and animal behavior are imperfect sciences, shelters and their veterinarians cannot guarantee that adopted pets will not pose dangers to their human companions.  Although shelters do their best to assess animal disposition and adopt out animals that are free of parasitic diseases, shelters should be prepared to share the blame when children are bitten or lose their sight to ocular larval migrans.

In a New Haven case, a child lost his vision due to ocular toxocariasis and his parents sued the pet shop that had sold the child’s puppy.[2]  Although the pet shop ended up settling the case for $1.5 million, if the case had gone to trial the court would likely have addressed the issue of the pet shop’s alleged negligence in “failing to deworm the puppy, failing to have any deworming program in place, and failing to keep appropriate records.”[3] Although the defendant in this case was a pet shop, the analogy to the animal shelter context is clear. Shelters, like pet stores, are likely to be held responsible for protecting a naïve public from diagnosable, zoonotic diseases that are common in young and homeless animals.

Another liability issue for shelter veterinarians is assessing the vicious or dangerous nature of animals, especially dogs, before they are adopted out.  In a Tennessee case, a woman was killed by her neighbor’s two pit bulls that, several months earlier, her city animal shelter had determined were not “vicious.”[4]  Betty Lou Stidham lived next door to two pit bulls that had on numerous occasions’ bitten people.  When one of these dogs attacked her small dog so that her dog had to have a leg amputated, Ms Stidham filed a “vicious animal complaint” with the city shelter.  The shelter then impounded the dogs for evaluation and conducted a “vicious animal hearing.”  During that hearing, the shelter found that the dogs did not appear to have a “vicious nature” towards humans or animals and thus were not vicious.  However, the shelter did classify the dogs as “dangerous” because of their “capability to inflict serious injury,”[5] and thus ordered their owner to repair the fencing around the property and enroll the dogs in obedience classes.  The difference between the classifications “vicious” and “dangerous” in this case was that a classification as “vicious” would require the dogs to be impounded, while “dangerous” required only that certain steps be taken by the owner to minimize the dogs’ risk to others.

Adopting legally defensible policies and screening techniques reduces such risks by ensuring that adopting owners are able and willing to properly care for their new pet. (Appendix A) [6]   Shelters also may inquire as part of the assessment of prospective owners as to the type of environment to which a pet will be exposed.  Such inquiries reduce the possibility of pets being returned to the shelter because they did not “fit in” with the family.  Examples are a young, large, happy and rambunctious dog adopted into a family that lives in a high-rise apartment or a timid and potentially fearful cat adopted into a house full of active children.

II. Confidentiality of Medical Records

While veterinarians have a clear ethical obligation to maintain the confidentiality of their clients’ and patients’ medical records, [7] only a few states (namely Pennsylvania, New York, Georgia, Missouri, Kansas, Texas and Illinois) have laws, usually in the veterinary practice act, which require veterinarians to maintain client confidentiality.  This legal obligation does have exceptions however, and some states permit veterinarians to reveal confidential information for the purpose of protecting the public health or the health and welfare of the patient.

Shelter veterinarians face a difficult dilemma since, unlike their private practitioner colleagues, as many of the animals they treat are strays, either because the owners cannot be located or are unidentifiable.  Local and state laws dictate when the ownership of strays or abandoned animals is transferred to shelters, and once shelters are deemed to have ownership rights in the animals they shelter, no duty of confidentiality is owed to the former owner.  However, after the animal has been adopted, any medical information generated from the care of the animal would remain confidential in those states that impose a legal duty.

Therefore, in this hypothetical example, if Dr. Shelter treated a puppy, “Sammy” for tape worms after Mrs. Smith adopted the puppy and “Sammy” was later acquired by a second owner, Mr. Jack, then Mr. Jack would not be entitled to the information pertaining to “Sammy’s” treatment without Mrs. Smith’s authorization.  However, if Mr. Jack had been bitten by “Sammy”, Dr. Shelter would have to provide “Sammy’s” rabies vaccination history if Dr. Shelter is in a state that waives the duty of confidentiality for the purpose of protecting the public health.

III.  Malpractice Claims

Generally, shelter veterinarians are subject to the same malpractice claims as private practitioners and must therefore exercise the same standards of care as are expected of reasonably prudent veterinarians under similar circumstances.[8]  Examples of specific liabilities that most often concern shelter veterinarians include, the transmission of zoonotic diseases to humans, rabies exposure issues[9], anesthetic deaths of adopted animals scheduled to be neutered, and human injury due to the adoption of animals with behavioral problems.

It is advisable that within their agreements with the shelters at which they work, the veterinarian should be indemnified (ie, have their damages paid for by the shelter).  An example of indemnification language would be:

EmployER will ……. indemnify and hold harmless Employee, …… from and against each claim, damage, liability, loss and/or expense, …. whether based in tort, contract, equity, otherwise; including any claim before any court, agency, board or other body or entity having jurisdiction over veterinarians . . . based upon, resulting from, or by reason of the performance of Employee’s veterinary services in connection with her employment by Employer….

A release of liability from the shelter provides additional protection from the Employer suing the shelter veterinarian.   Such language would read as follows:

EmployER hereby irrevocably and completely forever:

            (i) releases, remise and discharges, . . . to irrevocably and completely forever release, remise and discharge Employee…from each Loss (as defined in Indemnification); and

            (ii) waives, … any and all rights, claims, remedies, privileges and benefits whatsoever … that is inconsistent with the foregoing. Employer hereby agrees both for itself and for each other Releasing Party that the foregoing release and waiver will remain in full force and effect regardless of any Agency’s determination

IV.   Expert Witness

Due to their involvement with the admittance and treatment of abused and neglected animals, shelter veterinarians are often asked to provide expert testimony in animal cruelty cases. While veterinarians receive no formal training on how to draft reports, answer interrogatories, or prepare for an appearance in court, serving as an expert witness is an important role which shelter veterinarians should be prepared to assume.   Without such experts to assist prosecutors in enforcing animal cruelty statutes, many perpetrators would be acquitted and left free to continue abusing animals.

In addition to the challenges of learning to be an effective expert witness[10], shelter veterinarians often are concerned with being sued for defaming[11] an individual charged with animal cruelty.  Unfortunately these suits do arise, but it should be comforting for veterinarians to know that such allegations are usually very difficult to prove and the truth is their best defense!  So as not to use personal funds to defend themselves against allegations of defamation, shelter veterinarians should not agree to be experts until they have determined who will pay their legal fees in the event they are sued.  Generally, shelters employing such veterinarians can agree to pay for the veterinarian’s defense or insurance can be purchased from a medical malpractice carrier, such as the AVMA-PLIT.  Moreover, some states protect veterinarians by forbidding claims brought against veterinarians on the basis of their involvement in such a case.  For example, Florida law states that veterinarians will not be held civilly or criminally liable for “decisions made or services rendered” under the state’s cruelty to animals statute.  It further clarifies this statement by asserting “[s]uch a veterinarian is, therefore…immune from a lawsuit for his or her part in an investigation of cruelty to animals.”[12]

V.  Permissible Acts of Shelter Staff

Since many shelters are set up as non-profit organizations and therefore are supported through generous but often limited donations, many are unable to hire “in-house” veterinarians.  As a result, many shelters consult or use the services of local private practitioners and have their non-veterinary personnel provide care to shelter animals. Private practitioners consulting or working with shelters must consider what forms of care they feel comfortable supervising or delegating to the shelter’s non-veterinary staff while abiding by the guidelines imposed by state law concerning acts that must solely be performed by veterinarians.  Generally, these include diagnosing, operating, treating or prescribing for any animal disease, pain or other physical condition.[13]

VI. Controlled Substances

As one of the main functions of shelters is to euthanize unadoptable animals, and few are “no-kill” facilities, shelters use large amounts of euthanasia solution, such as Pentobarbital.    The purchase and delivery of these “controlled substances ” is regulated by the Drug Enforcement Agency, a federal agency formed to guard against the misuse of dangerous substances, and in addition, each state has its own laws to regulate the use of these drugs.

Some state laws take into account the fact that euthanasia is an integral part of shelter life, and create unique provisions for the use of controlled substances specifically in shelters as opposed to the private practice setting.  State laws also may be more flexible regarding the purchase of euthanasia drugs for shelter use. Whereas state law generally only allows veterinarians to purchase controlled substances, some states permit animal shelters to register as “separate entities,” qualified to purchase euthanasia drugs even without a veterinarian on staff. Where a state requires individual practitioners to order and keep track of euthanasia solution in the shelter, thereby holding veterinarians solely responsible for the use of such drugs, it is essential for veterinarians to implement detailed guidelines for the staff to follow.

If an animal shelter is unable to obtain its own DEA license, it is dependent on veterinarians to purchase controlled substances for use at the shelter.  When a veterinarian decides to leave the shelter, both federal Drug Enforcement Agency regulations and state law must be followed in order to ensure the proper transfer of controlled substances from one licensed party to another.  The veterinarian who purchased these drugs will be held accountable and must take responsibility for them when he leaves.  If a new veterinarian is already at the shelter (or another responsible party with a DEA license), there should be a clear transfer of the controlled substances to that other party–the departing veterinarian should leave the responsible person with an inventory of all controlled substances purchased under the departing veterinarian’s DEA registration.

VII.  Rabies Vaccination Clinics

In order to reduce the public health risks associated with Rabies, municipalities frequently host “Rabies Clinics” which provide low cost vaccinations to cats and dogs owned by members of the community.  Such clinics are held at shelter facilities or public places such as fire houses and large parking lots.  Shelter veterinarians and private practitioners often donate their time and administer vaccines to what is frequently a large volume of dogs and cats.

Though there are a number of liability issues that arise in this context, there are certain requirements that are standard in most state laws governing vaccination clinics.  Firstly, though it is impossible to do a complete physical examination on each of these patients, most states, such as New York, require that the administering veterinarian perform physical exams to determine whether the pets are sufficiently healthy to tolerate the vaccinations.[14]  Additionally, owners must complete an information sheet before seeing the doctor, with such requisite information as their name, address, phone number, pet’s name, age, species, sex, color, breed and weight. (Appendix B) Thereafter, the veterinarian must fill in the rabies certificate for each patient, including the date of vaccination and the expiration date of the vaccine.

Some states, like Maine, have limited the liability by adopting laws that provide immunity for veterinarians working in the rabies clinic setting so that if injury or death to the animal does occur, the veterinarian is not held responsible.[15]  These provisions, however, are not universal and do not protect veterinarians in cases of gross negligence or willful misconduct, or where the veterinarian’s behavior falls below standards generally practiced by other veterinarians in like circumstances.[16]

VIII.   Liability for Euthanasia

Most shelters cannot find homes for all the animals they admit and are therefore permitted by state law to euthanize unadopted animals, including pets that have been lost by their owners.  Such laws are necessary to keep shelters functioning, as they experience a large influx of animals and need to maintain a continuous supply of cages. Before such animals can be euthanized, the laws of most states require that animals be held for a given waiting period to allow sufficient time for owners to locate their pets. This period, ranging anywhere from four to eight days, is often long enough for pets that can be identified, either with a collar, tattoo or microchip, to be reunited with their owners.

A negligence claim may arise when an animal is euthanized before the holding period is up and the owner comes in within the prescribed period to find the animal already gone.  Especially in today’s litigious climate, where the loss of a pet can invoke damages for loss of consortium and infliction of emotional distress, euthanizing an animal before the holding period has expired must be avoided.   Shelters can implement policies to minimize such risks by requiring their staff and veterinarians to check several times that an animal has been at the shelter for the requisite time period, before performing any euthanasia.

Conclusion

Shelter veterinarians have a unique relationship with the animals they treat and the owners that adopt these animals, and therefore they frequently are faced with legal dilemmas that they may not otherwise encounter as private practitioners.  There are, of course, many other legal issues that challenge shelters and shelter veterinarians on a daily basis, but this chapter is meant to guide shelter veterinarians in combination with their own common sense and caution; clearly there is not one answer that will apply to all situations.  Additionally, this chapter should not serve as legal advice, and shelter veterinarians should seek the direction of their state veterinary board as well as legal counsel, as needed, to determine the appropriate course of action in any particular situation.

References:

Shelter Medicine for Veterinarians and Staff.  Edited by Lila Miller and Stephen Zawistowski.  2004 Blackwell Publishing.  To order call 1-800-862-6657

[1]  Excerpts from the book, Shelter Medicine for Veterinarians and Staff.  Lila Miller and Ed  Zawistowski (Blackwell Publishing 2004)

[1].             Wilson, James F., et al., “Zoonotic Parasitic Diseases: A Legal And Medical Update.” Veterinary Forum, January 1996, pp. 40-46.

[2].              Id.

[3].              Id.

[4].              Chase v. City of Memphis, 1998 Tenn. LEXIS 435.

[5].              Id.

[6].             Wilson, J. F., Lacroix, C.A., Legal Consent Forms For Veterinary Practices. (Yardley: Priority Press Ltd., 1995)

[7].             Principles of Veterinary Medical Ethics of The American Veterinary Medical Association, Principle VII.  Medical Records, (1999 Revision)

[8].             Wilson, James F. , Professional Liability, Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 131-174.

[9].             “Public Veterinary Medicine: Public Health, Compendium of Animal Rabies Prevention and Control, 2000.”  Journal of the American Veterinary Medical Association, February 1, 2000 (Vol. 216, No. 3) pp. 338-343.

[10].          Wilson, James F. , The Veterinarian as an Expert WitnessLaw and Ethics of the Veterinary Profession. (Yardley: Priority Press Ltd., 1990), pp. 284-293.

[11].          Wilson, James F. , Libel and Slander,  Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 166-170.

[12].            Florida Statute § 828.12(3) (2001).

[13].            California Business and Professions Code § 4826 (b), (c), (d) (2001); New York Consolidated Laws, Education Law, Title 8, Article 135 § 6701.

[14].            New York Regulations, Veterinary Standards of Practice, NY Reg § 638.620.

[15].          Maine Revised Statutes, Title 7, Part 9, Chapter 720, § 39.17 (2001) (janus.state.me.us/legis/statutes/7/title7sec3917).

[16].            Texas Health and Safety Code § 826.047, (www.capitol.state.tx.us/); Pennsylvania Code § 455.9a(a).

VBA Webinars

Maintaining the Human-Animal Bond: Telemedicine

There are many challenges facing the veterinary profession and an estimated 30 to 40% of pets never see a veterinarian for care. In this segment Dr. Charlotte Lacroix, DVM, JD discusses how telemedicine can serve to connect veterinary professionals with pet owners as well as promote better health care for their patients and convenience for clients. Discussion includes best practices for implementing telemedicine in the context of current legal standards.

Running time: 20 mins

Approved for 0.25 hrs CE credit for veterinarians and technicians by the AAVSB RACE program, NY State and the NJVMA. The method of delivery is online and non-interactive. Be aware that some boards have limitations on the number of hours accepted in certain categories &/or restrictions on certain methods of delivery of CE.

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Each year, employment laws are changed and we face new challenges with managing our employees. This interactive session will provide attendees with the ability to address some of the new legal updates and hot topics in employee relations and compliance. 

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Responding to Disparaging Comments on Social Media

Tuesday, April 21, 2020 from 3:00 to 4:00 pm ET.

With today’s connected society and increasing use of social media, online reviews are important to every business. Having poor reviews is stressful for veterinarians and veterinary hospitals. While the temptation to defend oneself online is strong, it is often in the best interest of the veterinarian and veterinary hospital to either not respond at all, or to post a polite request to contact the hospital. Suing clients for defamation is generally not recommended or successful. Employees could potentially be asked to sign non-disparagement agreements when they are hired but given their difficulty to enforce and possible legal outcomes, it may be better to simply ask the websites to remove employee reviews. In cases where the client did receive poor service, practices should apologize and try to repair the damage with the client. Regardless of how negative reviews are handled, clinics should be prepared to use them to identify possible problems within the clinic.



Successfully Managing Conflict in Your Veterinary Practice

Tuesday, July 21, 2020 from 3:00 to 4:00 pm ET.

If you work at a veterinary practice, the reality is that you probably spend all day with your co-workers, almost every single day of the week! It isn’t reasonable to expect that no conflict will ever exist among co-workers. It is reasonable, though, as well as desirable, to create a healthy working environment where conflicts that arise are managed in a functional way, and in a way that allows your practice to flourish.



Associate Contracts for Corporate Consolidators

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.

Employment Contracts To Reel In Associate Specialists

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.

 

  1. 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.

 

  1. 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:

 

  1. 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?

 

  1. 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?

 

  1. 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?

 

  1. Compensation:  How Much?   Is It Enough?

 

How Much?

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

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.

 

Straight Commission

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.

 

Hybrid Systems

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.

 

  1. 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.

 

  1. Performance Evaluation.  Will the employer provide written and/or oral performance evaluations?  How often?  Will these be used to modify compensation?

 

  1. 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.

 

  1. 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.

 

  1. 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…

Issues to Negotiate in Contracts Seen in Practice

When you’re offered a job at a veterinary practice, it’s important to get as much information as possible about the specifics. You’ll typically be offered a certain wage, often along with benefits such as health insurance, retirement benefits, vacation time and the like. But the offer may not mention workplace flexibility and other perks that can have a significant impact on your job – and so it’s crucial to negotiate all of the key elements of the offer.

Many people feel uncomfortable when negotiating a work package, but gaining the ability to negotiate well help you to be more successful at work long after you’ve begun a particular job. As a part of a veterinary practice team, you may need to negotiate with vendors, and with challenging clients – and almost certainly there will be times that you need to negotiate with your employer about a raise, a revised benefits package, and evolving workplace perks and policies.

When you negotiate fair compensation for yourself, you will become more committed to the practice, which translates into better care for the practice’s clients and their pets. As an employer, when you negotiate fairly with employees, you will help to build loyalty that will stabilize and strengthen your practice.

What Negotiations Are & Why They’re Needed

A negotiation is a process in which two or more parties attempt to resolve differing needs and interests through a series of communications. An employer, for example, may want to offer someone higher wages, but needs to consider the overall profitability of a practice. Meanwhile, an employee may understand and support the need for a thriving practice, but also needs to earn a certain wage to support his or her family.

Employers and employees negotiate because they each have what the other one needs, and they believe they can obtain a better outcome through the process than if they simply accept what the other party is offering. Sometimes, negotiations occur because the status quo is no longer acceptable for one or both parties.

Negotiations take finesse because, besides dealing with specific tangible points (wages, insurance benefits and workplace perks, as just three examples), emotions play a part and ongoing relationships are involved. The parties are choosing to try to resolve their different positions through discussions, rather than arguing, ending the relationship, having one person dominate the relationship or taking the dispute to another party with more authority.

Negotiation Terminology

Using the example of wages, employers and employee alike have a target point, which are the wages they would like the other party to agree to. The difference between what an employee wants to be paid and the employer wants to pay is the bargaining range. Meanwhile, the resistance point is where a party would walk away from negotiations; if too low of a wage or raise is proposed, an employee may begin job searching or a job candidate may decline an offer; the employer also has a point at which he or she will reject a wage request and end negotiations.

When the buyer (employer) has a resistance point that’s above the seller’s (employee), this situation has a positive bargaining range. The employer, in this case, is willing to pay more than the employee’s minimum requirements, so this situation has a good chance of being satisfactorily resolved. With a negative bargaining range, though, one or both of the parties must change their resistance point(s) for there to be a possibility of resolution.

In a wage negotiation scenario, either the employer will offer a starting wage or raise, or an employee or job candidate will request a certain dollar amount; the first person to name a dollar amount is making the opening offer. If at least one of the parties has a BATNA – best alternative to negotiation agreements – then he or she will probably approach the discussions with more confidence, having another alternative. So, if an employer offers someone a job, but has another excellent candidate waiting in the wings, the employer has another alternative and can set a higher and/or firmer resistance point. Conversely, if an employee or job candidate has a unique set of skills that are needed in today’s practices, that person probably has more options in the job market – perhaps even other pending offers. The quality of a negotiator’s alternatives drives his or her value by providing the power to walk away and/or set a higher and/or firmer resistance point.

Bargaining Styles

There is more than one type of bargaining style. One way to differentiate them is to divide them into distributive bargaining and integrative bargaining.

In distributive bargaining, parties’ needs and desires are in direct conflict with one another’s, with each party wanting a bigger piece of a fixed tangible such as money or time, so these negotiations are typically competitive. Parties are not concerned with a future relationship with the other person. A slang term for this type of negotiation is “playing hardball” or “one upping” someone. Strategies often include making extreme offers, such as an employer offering a very low wage or a job candidate asking for an exceptionally high one. Tactics include trying to persuade the other party to reconsider his or her resistance point because of the value being offered – in this example, the job candidate might say that a high salary was required because of his or her abilities or an employer could say that lower wages would be compensated by a great work environment.

With integrative bargaining, though, the goal is win-win collaborations that will provide a good opportunity for both parties. The employer would acknowledge the employee’s value and need for a decent wage, and negotiate accordingly, while the employee or job candidate would recognize the value of working at a particular practice as well as the fact that the employer has numerous other financial commitments to fulfill.  They recognize that they need one another to maximize their respective opportunities and negotiate from a place of trust and integrity, with a positive outlook that recognizes and validates the other party’s interest in the transaction.

Here’s an interesting psychological truth. Negotiators are more satisfied with final outcomes if there is a series of concessions rather than if their first offer is accepted, because they feel they could have done better.

Negotiation Styles

To successfully negotiate, it’s crucial to clearly define the issues involved, and to prepare for the negotiations. Each party should be clear about his or her target point, opening offer, resistance point and BATNAs.

Multiple negotiation styles exist, each on the spectrum of assertiveness and cooperativeness. Here are summaries of common styles:

Competing (high in assertiveness, low in cooperativeness): these negotiators are self-confident and assertive, focusing on results and the bottom line; they tend to impose their views on others

Avoiding (low in assertiveness and cooperativeness): these negotiators are passive and avoid conflict whenever possible; they try to remove themselves from negotiations or pass the responsibility to someone else without an honest attempt to resolve the situation

Collaborating (high in assertiveness and cooperativeness): these negotiators use open and honest communication, searching for creative solutions that work well for both parties, even if the solution is new; this negotiator often offers multiple recommendations for the other party to consider.

Accommodating (low in assertiveness, high in cooperativeness): these negotiators focus on downplaying conflicts and smoothing over differences to maintain relationships; they are most concerned with satisfying the other party

Compromising (moderate in assertiveness and cooperativeness): these negotiators search for common ground and are willing to meet the other party in the middle; they are usually willing to give and take and find moderate satisfaction acceptable.

As long as both parties are committed to the business relationship and believe there is value in coming to an agreement, negotiations can typically proceed.  If one or both parties, though, are unreasonable, uninformed or stubborn – or listening to advisors with those characteristics – negotiations can fall through. Other challenges exist when one party doesn’t necessarily need the deal, isn’t in a hurry or knows that the other party is without other options and/or in a time crunch.

Negotiation Fears

You may dread negotiation. If so, you’re not alone. There are many reasons for not wanting to negotiate, but some common reasons include the following:

You have not yet solidified your position: in this case, more preparation is clearly needed.

Fear of looking stupid: nobody likes looking foolish, so some people will avoid negotiations altogether rather than taking the risk of not negotiating well.

Liking people and wanting to make them happy (but perhaps not being able to give them what they want)/not wanting to affect someone else in a negative way: if you are interviewing for a promotion at a practice, and you really like the practice manager, you may worry that negotiations will upset the manager or put her in a difficult position.

Fear of failure: some people would prefer to not negotiate at all, rather than making an unsuccessful attempt.

Feeling uncomfortable with money: some people were taught that it wasn’t polite to talk about money.

Other people have an aversion to conflict, overall, and so they miss out on the potential of it by not negotiating, in order to avoid feeling vulnerable.

Women in particular are reluctant to negotiate, with only 7 percent doing so. They suffer the costs associated with not negotiating because they tend to have lower expectations, fear being considered a “bitch” and can be penalized for negotiating. As a solution, women can consider framing their wants into the value that they will bring to the other party, and share how they can solve the underlying problem of the other party.

Areas where negotiating may not feel as intimidating include:

  • Negotiations for resources, whether it’s asking for more equipment or for a practice to hire more people
  • Negotiations about how to use resources; with a common purpose, solutions can be reverse engineered fairly easily
  • Negotiations where you have expertise
  • Negotiations with big companies where nothing is personal
  • Negotiations where you have evidence to support your position, including facts, data and logical reasoning

Salary and Benefits Negotiation Tips

Even though the examples given so far have focused on monetary compensation, when negotiating, don’t focus solely on wage or salary. Also discuss benefits offered and workplace perks – meaning the entire package. This can include, but is not limited to, health care coverage, life insurance, retirement programs, vacation time and flextime. If you’re job hunting, investigate what companies are offering. Where do you think the place you’re interviewing falls on that spectrum? What is the minimum pay level that you’re willing to accept? What is your preferred wage? What benefits are important to you?

If you want to work at a particular practice, but the pay rate isn’t quite what you want, ask if you can have a salary review in, say, six months. This doesn’t mean accepting a salary that is clearly sub-par, nor does it mean that you should try to put more pressure on a potential employer who is already offering you a good deal. It is simply something to consider in relevant circumstances.

What workplace perks might be desired? Would a company cell phone help you? Better equipment or software? If so, you could consider accepting somewhat lower pay if you get more tools to do your job.

Although telecommuting is seldom an option for veterinary staff, outside of perhaps financial or other purely admin functions, you could negotiate coming in half an hour later so that you can take your children to school or schedule a lunch break that coincides with when you need to pick them up. If you bring crucial skills to the negotiating table, you’re more likely to get these concessions than if you are entry-level.

If relevant, ask about practice policy if you become pregnant. How acceptable is the policy to you? How important of a negotiating point is this for you? What about if you are injured in the workplace? Educate yourself on your workplace rights before negotiations occur, as well as company policy. If you are valuable to the practice, perhaps you can negotiate some additional flexibility.

Who should be the first to make an offer? Some experts believe that, if you allow the other party to provide a starting dollar figure, he or she has shown his or her hand. But, research indicates that final figures tend to be closer to the original number stated than what the other party had originally hoped.

What NOT to Do

Beware of “between”! It probably feels reasonable to ask for a certain salary range – or range for a raise. But if you do that with a current or prospective employer, you have basically tipped your hand as far as how low you would go. Using the word “between” is actually a concession!

Another risky term: “I think we’re close.” A savvy negotiator will recognize “deal fatigue” on your end and perhaps stall in the hopes that you’ll concede, just to complete the deal.

Negotiating with Brokers

If you’re buying or selling a veterinary practice, then your negotiating skills will likely come in handy. For example, let’s say you’re selling a practice. In your listing agreement contract, you’ll typically need to agree to a period of time wherein the broker has exclusive rights to sell, perhaps six months or a year. If you’re not satisfied, can you terminate the agreement? It depends! It depends upon how well you negotiated the original contract with the agent. You may, for example, negotiate a clause stating that you can terminate the listing immediately for good cause or with a short period of prior notification if the termination is without cause. In exchange for that clause being included, perhaps you’ll agree to reimburse expenses incurred by the agent during the listing period and/or pay commission if the buyer is one that the agent initially identified.

Negotiating Lab Contracts

You’ll probably also need to negotiate contracts with labs that provide diagnostic services for your practice. You can work on a pay-as-you-go arrangement, sending work to different labs, as needed. The flaw is that you won’t get the financial incentives offered to practices who sign contracts. By signing a contract, you can negotiate lower fees or better rate schedules. When you pay less in lab fees, you could decide to offer lower rates to your customers, which will probably make more of them agree to pay for diagnostic testing in the first place. If you sign a multi-year contract with a lab, you may also be able to lease in-house lab equipment as part of the deal.

For Best Results

People tend to feel more confident during negotiations when it focuses on an area of their expertise and/or where solid evidence exists to back up the negotiations. Overall, success is achieved when you first:

  • Determine the interests of the other party
  • Embrace compromise
  • Observe the Golden Rule, treating others as you would like to be treated: fairly and reasonably, without defensiveness
  • Be prepared, both in factual information and in strategy

Know what’s most important to you, run the figures, and negotiate for what you want!