I get calls . I get emails . I see it online in forums . Dentists consistently insist that in Texas , it ’ s fine if a dental assistant wants to leave an office — she has every right to do so , Texas being an at-will state and all . And that ’ s true . And because this is true we see dentists recruit , or at least facilitate , former coworkers leaving their old office and joining them elsewhere based on this truth . The problem is that this truth is not the issue . The issue is not whether Texas is an at-will state because the conflict is not between the old office and the staffer ; rather the issue is between the old office and the dentist who had a contractual obligation to not engage in such solicitation .
Put another way , a dentist might incur legal liability under a contractual doctrine : breeching a non-solicitation clause . The law really doesn ’ t have anything to impose on the former staffer — again , Texas is an at-will state . In most cases offices do not have any mechanism to keep an employee from leaving , and certainly not from working at a specific competitor . But if a dentist has a contract with the employer that forbids the recruitment of that same staffer , and the dentist does , in fact , recruit that staffer , then that dentist might find herself on the wrong end of a lawsuit .
To reiterate , Texas being an at-will state is almost completely irrelevant when discussing whether you can bring staff from an old office to the next . The applicable law is based in contract , so please review your rights in that contract . If you feel that contract overreaches in any way , then consider seeking legal counsel that can advise if the provision has been appropriately drafted , and if not , what are the best courses of action going forward .
This article has been inspired by the now countless interactions I have had with dentists who call after it ’ s too late . Someone leaves to greener pastures , wants to take their assistant with them , actually does take the assistant with them , and then gets a letter threatening a lawsuit . The dentist calls me wanting confirmation that they did nothing wrong since , again , Texas is at-will . That ’ s when I have to deliver the bad news : you didn ’ t violate any at-will law , you breeched your contract . And Texas , more than most states , loves to preserve the sanctity of contracts .
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In closing , I want to make one more note . Sometimes I hear dentists say , “ Texas is a right to work state ,” suggesting that this concept is synonymous with “ at-will .” It is not . For reasons better explained in a separate article , the Right to Work doctrine doesn ’ t come into play much in dentistry . This is only relevant insofar as when dentists Google whether Texas is a Right to Work state ( which it is ), which then confirms their misconception that they are free to recruit former coworkers ( they likely are not ).
Remember that when you sign a contract , most of your rights and restrictions are now tied to that contract , including the ability to recruit former coworkers to your new job , even if Texas is an at-will state .
Joseph McGregor handles most of McGregor & Oblad ’ s dental startups , acquisitions , partnership matters , employment contracts , and other business-related transactions . His education emphasized corporate law , and his professional background is in larger business transactions involving sophisticated commercial acquisitions and real estate arrangements . Joseph McGregor holds a B . S . in Finance and graduated from the law school at Brigham Young University . Joseph is a native of Salado , Texas . He has a wife and five kids – and an unhealthy passion for college football . For answers about your specific concerns , send email to : jmcgregor @ mcgregorfirm . com .
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