Some physicians may desire to earn a little extra money by working a second job outside of normal business hours of their current employer. These physicians who are not scheduled to the work at the clinic on a weekend and are not otherwise on call may desire to pick up a locum tenens job or work PRN. After all, who can’t use a little extra money? The problem is that physician employment contracts often contain provisions that prohibit the ability of a physician to “moonlight” even during the physician’s time off.
A “no moonlighting” provision may look like the following:
“Physician shall work exclusively for the benefit of the Group. During the term of employment, Physician may not engage in any professional activities or obtain employment with any other entity, organization, or individual or otherwise engage in the private practice of medicine without the express written approval of the Group. Any compensation received by Physician because of such activities or employment that was not approved by the Group shall be assigned to the Group and shall be deemed the property of the Group.”
Did you notice that the Group has the right to receive any monies earned by a physician for moonlighting activities not approved by the Group? This concept is in place to incentivize a physician to not pursue the activity without approval from the employer.
Why do employers include these provisions in their contracts with physicians? Because they want their physicians to spend their undivided attention in the furtherance of the business of the employer. They want physicians to be fully committed to the employer’s practice. Employers also want to avoid divided loyalties and any potential conflict of interest by having a physician serve two employers.
That said, employers sometimes offer limited moonlighting opportunities for benevolent and charitable purposes, teaching, speaking, research and writing, and other similar “not for profit” activities provided these activities are approved in advance by the employer and do not materially interfere with the duties of the physician under the contract with the employer. Further, an employer may even request a physician to obtain their own malpractice policy to cover the activity if it is a medically related professional activity.
If it is important for you to be able to moonlight to earn extra money, then you should ask your potential employer to add an exception to the “no moonlighting” provision of your employment agreement before you sign it. It is possible an employer may allow you to perform limited “for profit” moonlighting activities, but they will ask you to (i) name the other employer, (ii) limit the amount of time you spend there, and (iii) obtain your own malpractice policy to cover your professional activities in that employment situation.
Keep in mind that your employment agreement may likely contain a non-compete provision which would prohibit you from providing your professional medical services to a competitor both during the term of your employment and afterwards. So, your moonlighting activity must also comply with your non-compete obligations or else you risk violating your non-compete obligation to your employer.
An ideal time to ask for the exception would be before you sign the contract and not afterward. You lose leverage after the signing of the contract. After all, why would the employer agree to this exception after you signed the contract? So, it may be in your interest to ask for this exception before signing and as part of your overall negotiations with your potential employer. If you have already signed your contract, just realize your employer may be less likely to amend your contract to allow for the moonlighting activity without receiving something in return from the physician.
If a physician proceeds with pursuing any moonlighting despite the presence of a no moonlighting provision in their contract, then an employer may claim a breach of the contract and ask a court to enjoin (stop) the physician from working the second job.
The Physician Contract Lawyer can review your current contract to identify whether you are prohibited from performing any moonlighting activities. Additionally, the Physician Contract Lawyer can propose suggested revisions to the applicable provisions to allow you more flexibility in any moonlighting pursuits you may have. The Physician Contract Lawyer can then negotiate these provisions with your employer to a form that is agreeable to both parties. You will then know whether you are permitted to make extra money on the side or are “locked in” to working exclusively for your employer.