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J1 Waiver
Question:
I am a foreign medical graduate who is doing "J1 waiver" working on a H1 B visa in [an] undeserved area. Two months before I started working, my employer asked me to sign a no compete clause which is not allowed in a waiver job. I signed it as I did not want to lose the position. Is this clause enforceable?
Response:
The new HHS J-1 waiver program has, as one of its requirements, a provision that the employment contract cannot contain a covenant restricting the doctor's ability to continue working in the area after the 3-year period is over.
The HHS waiver program specifically requires the following:
- The physician must agree to perform primary care or psychiatric services. Primary care includes general internal medicine, pediatrics, family practice or obstetrics/gynecology.
- The work must be in an HPSA, MUA, or, for psychiatrists, in a mental health professional shortage area (MHPSA).
- The facility must show good faith attempts to recruit U.S. physicians in the recent past.
- The facility head must confirm that the facility is located in an HPSA, MUA, or MHPSA and that the facility accepts Medicare, Medicaid and indigent patients. The facility must provide care on a sliding fee scale for persons at or below 200% of the federal poverty income level. Persons with third party insurance may be charged the full fee for services. Furthermore, the facility may not charge more than the "usual and customary" rate prevailing in the geographic area in which the services are provided.
- The doctor cannot be pursuing more than one interested government agency waiver request at a time. The doctor must work at least three years and at least 40 hours per week in the specified HPSA, MUA, or MHPSA.
- The contract cannot contain a covenant restricting the doctor's ability to continue working in the area after the three-year period is over.
Thus, on the surface, it would appear that enforcement of the restrictive covenant would be questionable.
The preceding was prepared by John Powers, JD, an attorney with the healthcare practice of Husch & Eppenberger. It is prepared as a source of general information concerning recent health law developments and is not legal advice or an opinion. No action should be taken in reliance upon this information without obtaining the advice of a knowledgeable healthcare attorney.
Attorney John Powers has partnered with Cejka Search to address healthcare legal issues in our Legal Counsel feature on cejkasearch.com. His areas of expertise include hospital and medical practice issues, physician recruitment transactions, managed care counseling, development of MSOs, IPAs, and managed care delivery systems, antitrust counseling to healthcare clients, insurance matters, physician-hospital contracting, medical staff matters, and bioethical issues.
If you have a question or comment for Mr. Powers, please send a message to: info@cejkasearch.com