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Noncompetition Agreements: How Informed Are Counselors?

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Title: Noncompetition Agreements: How Informed Are Counselors?
Language: English
Authors: Daniels, M. Harry, White, Lyle J., Wyatt, Tracey
Source: Journal of Counseling & Development. Win 2003 81(1):84-92.
Peer Reviewed: Y
Page Count: 9
Publication Date: 2003
Document Type: Information Analyses
Journal Articles
Reports - Research
Descriptors: Competition, Contracts, Counseling, Counselor Attitudes, Employment Opportunities, Professional Development
ISSN: 0748-9633
Abstract: Assesses American Mental Health Counselor Association members' knowledge of legal bases for noncompetition contracts and their agreement with the legal opinions and also assesses the degree of similarity and dissimilarity between members' knowledge of and agreement with the legal opinions. Results showed that counselors are better prepared to look after the welfare of their clients than their own employment interests. (Contains 26 references and 4 tables.) (GCP)
Journal Code: CIJJUL2003
Entry Date: 2003
Accession Number: EJ662327
Database: ERIC
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  Value: <anid>AN0009205545;jcd01jan.03;2003Mar14.09:36;v1.9</anid> <title id="AN0009205545-1">Noncompetition Agreements: How Informed Are Counselors? </title> <p>A noncompetition agreement is a contract between employer and employee prohibiting the practice of a trade or profession for a specified time or within a specified region upon an employee's leaving an employer's hire (A. Valiulis, 1985). The authors assessed American Mental Health Counselor Association members' knowledge of the legal bases for these contracts and their agreement with the legal opinions and also assessed the degree of similarity and dissimilarity between members' knowledge of and agreement with the legal opinions. Results showed that counselors are better prepared to look after the welfare of their clients than their own employment interests. Implications for counselor training are discussed.</p> <p>Private practice opportunities, bolstered by licensure, certification, and registration laws in various states of the United States and the District of Columbia (American Counseling Association [ACA], 2002; Gerstein & Brooks, 1990), have become the preferred employment setting for many graduates of counselor programs (Zimpfer, 1996). (Licensure information for this article was originally retrieved in an earlier ACA document that is no longer available; a current 2002 document is provided.) Most counselors, however, begin their professional career in the employment of a private or community agency (Hosie, West, & Mackey, 1988; Lawless, Ginter, & Kelly, 1999; West, Hosie, & Mackey, 1987, 1988). Many counselors subsequently make the decision to open a private practice and, in most cases, compete with their former employer. Typically, employers within professions such as law, medicine, architecture, and dentistry have attempted to restrict competition from former employees through the use of noncompetition agreements. Noncompetition agreements are contractual terms between an employer and an employee prohibiting the practice of a trade or profession for a specified time or within a geographic region upon an employee's leaving an employer's hire (Valiulis, 1985). The following is a sample of a typical physician's noncompetition agreement upheld by the Court of Appeals of Kentucky:</p> <p>Each full time employee further expressly covenants and agrees (unless waived in writing by the corporation) that, for a period of one (<reflink idref="bib1" id="ref1">1</reflink>) year following the termination of his employment with the corporation, he will not, directly or indirectly, for himself as an agent, on behalf of, or in conjunction with, any person, firm, association, or corporation, engage in the practice of medicine within a fifty (<reflink idref="bib50" id="ref2">50</reflink>) mile radius from the city where he has primarily performed his services. (Hall v. Willard & Woolsey, 1971, pp. 316-317)</p> <p>Competing with one's former employer has historically caused problems within professions like law, medicine, architecture, and dentistry (Valiulis, 1985). The problem frequently arises from the transfer of clients or patients to the competing practice after the employee's decision to leave the employing agency or corporate body and engage in private practice. This competitive relationship between the former employer and the new private practitioner is now becoming a visible issue in mental health services. In a 1992 survey of community mental health agency administrators, private practitioners were viewed as the greatest competitor for insured clients (Clark & Dorwart, 1992).</p> <p>Despite this developing competitive atmosphere in mental health service delivery, little is known about counseling professionals' knowledge and endorsement of noncompetition agreements. Our review of the counseling literature (spanning the time period of 1970-2000) found no empirical data describing counseling professionals' knowledge and endorsement of noncompetition agreements. Moreover, neither the American Counseling Association Code of Ethics and Standards of Practice (ACA, 1997) nor the American Mental Health Counselors Association Code of Ethics (American Mental Health Counselors Association [AMHCA], 1987) includes position statements concerning the use or view of noncompetition agreements. The absence of a professional position by ACA and AMHCA regarding noncompetition agreements stands in stark contrast to other professions, notably law and medicine, in which noncompetition agreements have had a longer and more prominent history (American Bar Association, 1990; American Medical Association, 1997). Clearly, if practicing counselors are to compete knowingly with other providers in the competitive climate of mental health service delivery, they will need to understand the nature of noncompetition agreements and be prepared to acclimate their practices accordingly.</p> <p>This study had two purposes. First, we hoped to assess AMHCA members' knowledge of the legal bases for restrictive covenants and to determine their agreement with these legal opinions. We were also interested in investigating the degree of similarity and dissimilarity between participants' knowledge of and agreement with legal opinions that pertain to restrictive covenants.</p> <hd id="AN0009205545-2">METHOD</hd> <hd1 id="AN0009205545-3"> Participants </hd1> <p>AMHCA members were chosen as the counseling professionals most likely to be engaged in private practice and to experience the issue of noncompetition agreements in the workplace. A computer was used to randomly generate a list of 500 potential participants from the AMHCA national membership data file. The resulting list included counselors, counselor supervisors, counselor educators, administrators, research specialists, paraprofessionals, students, and others. We excluded students from the participant pool because we reasoned that they would have little experience in issues of private practice and associated workplace concerns. Only the names and addresses of AMHCA members were included on the labels; no other identifying information was used. This process allowed participants to remain anonymous.</p> <p>An assessment packet was mailed to all participants at their AMHCA mailing address. These packets included a letter of introduction explaining the research, an instrument constructed for the purposes of this study, a demographic page, and a self-addressed, stamped envelope. The first mailing elicited 108 responses, a response rate of 22%. A second mailing was sent to all participants approximately 2 months later. Participants were asked to ignore the second mailing if they had already returned the questionnaire. The second mailing produced an additional 30 responses, making the total number of responses 138. The overall response rate was 28%, which was comparable with other survey studies of mental health providers (e.g., Kleist & White, 1997; Palm & Gibson, 1998; Polusny & Follette, 1996).</p> <hd1 id="AN0009205545-4"> Instrumentation </hd1> <p>We were unable to find any previous studies of practitioners' knowledge of and/or agreement with restrictive covenants within the mental health profession (Wyatt, 1997); consequently, we constructed and validated a survey instrument that would satisfy our purposes. The Assessment of Restrictive Covenants (ARC) was constructed to assess counselors' knowledge of and agreement with legal questions concerning noncompetition agreements. The ARC consisted of 46 items based on legal precedents from case law. Participants were asked to answer either yes, no, or don't know for the Knowledge component. For the Agreement component, participants were asked to indicate their agreement with a statement using five categories: strongly agree, agree, don't know, disagree, and strongly disagree.</p> <p>The ARC was theoretically derived using the conceptual structure evident in case law, that is, the body of literature composed of legal decisions over noncompetition agreements litigated at the appellate and federal level (see Wyatt, Daniels, & White, 2000). The ARC was organized into three primary and seven subscales. Items were developed using case law decisions that addressed the legal concept of "reasonableness," as delineated in the Restatement of the Law Second-Contracts (American Law Institute, 1981) and as used in the litigation of noncompetition agreements.</p> <p>As used in the law, "reasonableness" considers three criteria: (a) Protectable Employer Interests (PEI scale), (b) Undue Burden to an Employee (UBE scale), and (c) Injury to the Public Welfare (ITP scale). These criteria served as the three primary scales for the ARC. For each scale, additional subcriteria were drawn from relevant case law and used to make up subscales. For example the first criterion, PEI, can be established if four subcriteria are met: Goodwill (G), Near Permanent Relationship (NPR), Specialized Training (ST), and Confidential Information (CI). The UBE scale comprises three subcriteria, and two of these are delineated by case law: Compensation to the Employee (C), and Restrictions on the Employee (R). A third subcriterion, Knowledge of the Law (KOL), although not a legal requirement, was added to the survey to determine how well informed participants were about noncompetition agreements. A review of case law showed no additional subcriteria for the final scale, ITP.</p> <p>Using the aforementioned case law organization and incorporating issues germane to the counseling profession, 48 items were constructed to operationalize the respective scales and subscales. Completed items were assigned to each scale and subscale using the case law conceptual organization previously discussed. A list of items and scale and subscale assignment is provided in Table 1, along with the keyed response. The instrument was scrutinized for legal accuracy and content validity by W. Basanta, a noted legal scholar of medical practice (LeBlang, Basanta, & Kane, 1996).</p> <p>The two examples that follow illustrate the process that was used to develop each item. Item 46 reads, "In regions underserved by counselors, noncompetition agreements are injurious to the public welfare." This item was based on the case of Dick v. Geist (1985), in which the Court of Appeals of Idaho ruled in favor of the plaintiffs, two physicians, whose specialty of neo-natal care was underserved in the county in which they practiced and whose services were considered vital to maintaining the neonatal care of infants in the region. Item 42 reads, "A reasonable geographic restriction within a noncompetition agreement includes a region from which an agency/practice could reasonably attract clients in the future." This item was based on the case of MacMurray v. Bateman (1965), in which the Supreme Court of Georgia held a reasonable geographic restriction as covering a region from which a practice was developed and could reasonably be developed in the future, in this case, a 50-mile radius of the given city. (Additional information concerning the development of the remaining 46 items can be obtained by contacting the first author.)</p> <hd id="AN0009205545-5">RESULTS</hd> <hd1 id="AN0009205545-6"> Participant Demographics </hd1> <p>We first wanted to determine whether the demographic profile provided by the 138 respondents was consistent with the AMHCA demographic profile contained in AMHCA's 1997 membership report (AMHCA, 1997). Differences for work setting, gender, educational level, and position were tested using chi-square tests of homogeneity. The results of these analyses follow.</p> <p>The work setting for the majority of respondents was private practice (n = 94; 68.1%). The remainder worked in community counseling (n = 15; 10.9%), college/university (n = 12; 8.7%), or other (n = 7; 5.1%) settings (i.e., schools, government, or business). Ten respondents (7.2%) did not indicate a work setting. This distribution of responses is, with two exceptions, consistent with the AMHCA membership profile. In this sample, more counselors in private practice responded to the survey (n = 94; 68.1%) than are represented in AMHCA (49%), and fewer counselors in a community counseling work setting responded (n = 15; 10.9%) than are represented in AMHCA (24%). The proportion of counselors employed in all of the other work settings was, however, consistent with AMCHA membership. The observed differences notwithstanding, we concluded that the sample could be considered representative of AMHCA membership.</p> <hd1 id="AN0009205545-7"> Purpose 1: Assessment of Knowledge and Agreement </hd1> <p>We wanted to assess the respondents' knowledge of noncompetition agreements, as defined by their correct responses to the statements that constituted the knowledge items and by the strength of their agreement with these statements. To achieve this purpose, we first evaluated the response patterns for knowledge at the composite, scale and at the individual item level.</p> <p>Knowledge response patterns. First, we compared the observed response pattern of the knowledge items with the pattern expected by chance (i.e., 1 out of 3) using a chi-square analysis.</p> <p>Second, we determined which items participants had the most knowledge of by ranking items into quartiles according to the proportion of correct responses. The results of both analyses are found in Table 2. Overall, the proportion of correct responses ranged from 10% to 80%. The composite knowledge mean score was 36.4% and the median was 32%, scores that are approximately equal to the response rate that would be observed by chance alone (i.e., 33.3%). A description of the content of each quartile follows.</p> <p>The fourth quartile (most correct responses) contained 7 items from PEI: Items 1 (80%), 5 (61%), 6 (56%), 10 (53%), 20 (53%), 23 (73%), and 26 (53%); 2 items from UBE: Items 30 (61%), and 44 (53%); and 3 items from ITP: Items 46 (56%), 47 (66%), and 48 (69%).</p> <p>The third quartile (second most correct responses) contained 10 items from PEI: Items 2 (41%), 4 (45%), 7 (34%), 8 (33%), 9 (41%), 11 (41%), 13 (35%), 18 (40%), 19 (36%), and 25 (34%); 2 items from UBE: Items 41 (44%) and 42 (44%); and 0 items from ITP.</p> <p>The second quartile (third most correct responses) contained 5 items from PEI: Items 3 (24%), 17 (31%), 22 (24%), 24 (31%), and 27 (22%); 7 items from UBE: Items 33 (28%), 35 (24%), 39 (27%), 40 (25%), 43 (23%), 38 (24%), and 34 (22%); and 0 items from ITP.</p> <p>The first quartile (fewest correct responses) contained 6 items from PEI: Items 28 (22%), 16 (19%), 15 (19%), 21 (17%), 14 (16%), and 12 (12%); 5 items from UBE: Items 31 (19%), 36 (17%), 37 (17%), 29 (14%), and 32 (10%); and 1 item from ITP: Item 45 (16%).</p> <p>Analysis of agreement. Following a format similar to the analysis of the knowledge patterns, we performed a chi-square analysis to determine if the observed agreement pattern varied significantly from the one expected by chance (i.e., 20% in each of the five Likert-type categories). The results (see Table 3) showed that all items were significantly different (p < -.05; in most cases p was < .001) from chance.</p> <p>We determined which items the participants agreed with most by ranking items into quartiles according to the combined proportions of strongly agree and agree (see Table 3). Overall, the distribution of these combined responses ranged from 4% to 89%. The mean proportion for agreement for all items was 43.45% and the median was 42%. As with the knowledge scores, these scores were approximately equal to the response rate that would be observed by chance alone (i.e., 40%). A description of the content of each quartile follows.</p> <p>The fourth quartile (items with the most agreement; Table 3) contained 8 items from PEI: Items 1 (89%), 5 (77%), 6 (79%), 12 (78%), 13 (65%), 14 (79%), 23 (77%), and 26 (63%); 1 item from UBE: Items 29 (62%); and 3 items from ITP: Items 48 (88%), 47 (81%), and 46 (84%).</p> <p>The third quartile (items with second most agreement) contained 9 items from PEI: Items 2 (43%), 4 (57%), 10 (58%), 11 (50%), 18 (44%), 19 (46%), 22 (58%), 25 (56%), and 27 (46%); 2 items from UBE: Items 39 (47%) and 44 (56%); and 1 item from ITP: Item 45 (60%).</p> <p>The second quartile (items with the third most agreement) contained 6 items from PEI: Items 7 (37%), 8 (36%), 9 (38%), 17 (30%), 24 (25%), and 28 (39%); 6 items from UBE: Items 35 (24%), 36 (30%), 38 (21%), 40 (21%), 41 (40%), and 42 (34%); and 0 items from ITP.</p> <p>The first quartile (least agreement) contained 5 items from PEI: Items 3 (20%), 15 (4%), 16 (19%), 20 (16%), and 21 (16%); 7 items from UBE: Items 30 (10%), 31 (12%), 32 (15%), 33 (15%), 34 (18%); 37 (12%), and 43 (21%); and 0 items from ITP.</p> <hd1 id="AN0009205545-8"> Purpose 2: Comparison of Knowledge and Agreement </hd1> <p>For purposes of comparing knowledge and agreement on each item, we used the quartile rankings for each to construct a four by four contingency table (knowledge by agreement, see Table 4) and conducted a chi-square analysis to determine the likelihood of the observed item distribution occurring by chance. The results of the chi-square analysis showed that the observed distribution was unlikely to be due to chance (Χ² = 1 1.173, df 2, p < .01).</p> <p>In examining the contingency table, we found cell sizes that ranged from 8 to 0 and a median cell size of 2.5 (a cell size of 3 would be expected in a chance distribution). It is interesting that the cell with the greatest number of items (n = 8) was defined by the highest knowledge and the greatest agreement (Q4-Q4). At the opposite end of the table, the cell defined by the least knowledge and lowest agreement contained the second highest number of items (as did cell Q3-Q3). Cells with low numbers (i.e., n = 0 or 1) did not appear in a definable pattern. However, when Table 4 is collapsed into a two by two table, the result is a symmetrical distribution of items across four knowledge-agreement cells (see Discussion section).</p> <hd id="AN0009205545-9">DISCUSSION</hd> <p>Noncompetition agreements are proven means of limiting competition and need to be understood by counselors. Although the extent to which noncompetition agreements are used within the counseling profession is unknown, competing with one's former employer has historically caused problems within other health care professions such as medicine and dentistry (Valiulis, 1985). Given the increasingly competitive tone in mental health service delivery (Clark & Dorwart, 1992), it is reasonable to assume that employment contracts of this type do exist and will, in all likelihood, increase in number as the competition for clients and their fees increases (Lawless et al., 1999). Assuming that noncompetition agreements pose an unrecognized reality for many counseling professionals, we wanted to determine counselors' knowledge of and agreement with the legal bases of these agreements.</p> <p>Our first purpose in this study was to assess counselors' knowledge of noncompetition agreements, as defined by their correct responses to the statements that constituted the knowledge items, and the strength of their agreement with these statements. For both knowledge and agreement, the averages of overall responses were similar to chance occurrence (i.e., 36.4% versus 33.3% for knowledge, 43.8% versus 40% for agreement). At the item level, however, we observed response distributions that were significantly different from chance. Furthermore, there was considerable variation among items as evidenced by the range of scores, which allowed us to group the items into quartiles. Considered together, these findings support the assumption that many counseling professionals lack sufficient knowledge about the nature of noncompetition agreements and how they may infringe on their opportunity to practice. Because of this limitation, counselors may experience a significant disadvantage when they negotiate an employment contract.</p> <p>Our second purpose was to compare the knowledge and agreement proportions for each item. When Table 4 was collapsed to a two by two table, a symmetrical distribution appears that is of interest. Seventeen items appear in the cell defined as high knowledge-high agreement, 7 in high knowledge-low agreement, 7 in low knowledge-high agreement, and 17 in low knowledge-low agreement. A closer look at the two cells containing the most items showed that respondents were most knowledgeable about and agreed with items that addressed the consideration that counselors are expected to afford their employers and their clients. Specifically, 13 of the 17 items in the high knowledge-high agreement cell focused on matters related to PEI (i.e., Items 1, 2, 4, 5, 6, 10, 11, 13, 18, 19, 23, 25, and 26, in Table 1). Of the 4 remaining items in the high knowledge-high agreement cell, 3 focused on issues pertaining to minimizing injuries to public welfare (<reflink idref="bib46" id="ref3">46</reflink>, 47, and 48). The final item (<reflink idref="bib44" id="ref4">44</reflink>) emphasized a geographic restriction that can be placed on counselors who are employees of an agency or a private practice.</p> <p>As we have noted elsewhere (Wyatt et al., 2000), courts have found that employers' claims of legitimate interest, including goodwill, near permanent relationships, specialized training, and confidential information, may require protection from employee competition. Respondents tended to know about and agree with the majority of items (5 of 6) that pertained to goodwill (<reflink idref="bib1" id="ref5">1</reflink>, 2, 4, 5, and 6), 3 items that pertained to near permanent relationship (<reflink idref="bib10" id="ref6">10</reflink>, 11, and 13) and confidential information (<reflink idref="bib23" id="ref7">23</reflink>, 25, and 26), and 2 items that pertained to specialized training (18 and 19).</p> <p>In contrast, most of the items in the low knowledge-low agreement cell focused on the burdens that a noncompetition agreement may impose upon a counselor who is an employee of an agency or practice. Specifically, 10 of the 17 items in the low knowledge-low agreement cell came from the UBE scale (i.e., Items 31, 32, 33, 34, 35, 36, 37, 38, 40, and 43). Courts have found that the standard of reasonableness applies to employees' burden in terms of their opportunity to receive compensation for their efforts and the nature of restrictions that are imposed by the agreement. Respondents tended to be uninformed about and disagree with the majority of items (5 of 6) that pertained to compensation (<reflink idref="bib34" id="ref8">34</reflink>, 35, 36, 37, and 38), 3 items that pertained to knowledge of the law (<reflink idref="bib31" id="ref9">31</reflink>, 32, and 33), and 2 items that pertained to restrictions on employee (40 and 43). These findings illustrate that counselors seem to know little about the business practices that they can use to build and protect a private practice or to move from one practice to another. Stated differently, counselors seem better equipped to look after the welfare of clients rather than their own welfare.</p> <p>Noncompetition agreements are complex phenomena, and they require counselors to consider not only their obligations to their clients and employers but also those obligations that they should consider for themselves. Our results indicated that counselors are ill prepared to weigh both sets of considerations. If counselors are to maintain a presence in the highly competitive environment that characterizes mental health care delivery, they need to be alert to potential impediments to employment. For example, although it may be assumed that an employment agreement cannot take away from counselors any right that is provided by the U.S. Constitution, counselors need to know that state courts, using the standard of reasonableness, have evaluated the legality of these contracts on a case-by-case basis. Furthermore, because the "concept of the reasonableness restraint varies from jurisdiction to jurisdiction and frequently even within a particular jurisdiction" (Closius & Schaffer, 1984, p. 546), no uniform interpretation of the guidelines in the form of a statute exists on a national level (Getty, 1986; Wyatt et al., 2000).</p> <p>The lack of sufficient preparation regarding the complexities of noncompetition agreements places counselors in a disadvantaged position vis-à-vis the agencies that employ them and may represent an overall practice deficiency in counselor education programs. Until programs take steps to address this deficiency, practitioners will need to assume responsibility for becoming educated about noncompetition agreements and their impact on professional opportunity.</p> <hd id="AN0009205545-10">TABLE 1 Assessment of Restrictive Covenants Scales, Subscales, Items, and Keyed Responses</hd> <ct id="AN0009205545-11"> Legend for Chart: A - Scale/Subscale B - Key C - Item A B C PEI G Yes 1. The positive reputation of an agency within the community is OFTEN a reflection of the quality of service provided by their providers' counselors. Yes 2. The relationship enjoyed between counselor is possible because of the and client is possible because of the willingness of the employer to hire the employee and build a business in the community. Yes 3. The willingness of the employer to hire employees justifies the use of a noncompetition agreement. Yes 4. The reputation of an agency/practice within a community makes the counselor to client relationship possible. Yes 5. The reputation of an agency/practice can be considered a protectable asset of the employer. Yes 6. An employer's professional skill, experience, and reputation are things that cannot be bought or sold. They constitute a part of the individuality of a particular person or agency/practice. NPR Yes 7. The clientele solicited through an agency can be considered protectable assets of that employer. Yes 8. The clientele served by an agency can be considered protectable assets of that agency. Yes 9. The clientele solicited through and served by an agency can be considered protectable assets of that agency. Yes 10. The employer's client list can be considered considered protectable assets of an agency/practice. Yes 11. The employer's referral network can be considered protectable assets of an agency/practice. No 12. Clients have a right to be notified of a non competition agreement prior to termination of a counselor's employment. No 13. An agency/practice has a duty to provide client with a particular counselor of client's choice. No 14. An agency/practice has a duty to notify clients of personnel changes. Yes 15. An agency/practice has no duty to notify clients of personnel changes even if the changes even if the change directly affects the counseling relationship. ST Yes 16. Agencies/practices providing special training to an employee (e.g., counselor) can justly expect a pledge of noncompetition from the employee. Yes 17. Graduate counselors begin work for employer as fully trained professionals. Yes 18. Special training provided to the employee puts employer at a competitive disadvantage should the employee leave to compete with that employer. No 19. Graduate counselors typically require a significant financial investment by the employing agency/practice in training to enable them to competently provide service to clients. No 20. Costs of training, as typically provided by agencies/practices, should be reimbursed to the employer in the event of an employee quitting. Yes 21. Training, as typically provided by agencies/practices, is adequate payment for an employee's pledge to not CI No 22. The burden of confidentiality is with the employing agency/practice. Yes 23. The burden of confidentiality is with the counselor. No 24. Information attained in a counseling relationship (not written case files) is the property of the agency/practice. Yes 25. Information attained in a counseling relationship (not written case files) is the property of the counselor. Yes 26. Confidential information unique to an employing agency/practice is a protectable asset of the employer. No 27. Client information is confidential information unique to an employing agency/practice. No 28. Typical counseling agencies/practices contain confidential information similar to the trade secrets of corporations. UBE KOL No 29. New counselors are generally informed concerning employment contracts (e.g., tition agreements) and their future impact on the employee. No 30. It is unnecessary for counselors to become familiar with the details and consequence of noncompetition agreements. No 31. CACREP-accredited institutions prepare graduates to anticipate legal aspects of employment, specifically the nature and impact of noncompetition agreements. No 32. ACA ethical standards are compatible with the purpose and future impact of noncompetition agreements in the counseling profession. No 33. ACA adequately informs members of the existence and future impact of noncompetition agreements through its publications and seminars. Yes 34. Termination as a consequence of failure to sign a noncompetition agreement is legal. Yes 35. Initial employment can be legal compensation (payment) to the employee for signing a noncompetition agreement. Yes 36. Continued employment can be legal compensation to the employee for signing a noncompetition agreement. Yes 37. Noncompetition agreements required after employment, even years after, are legal. No 38. Termination as a consequence of failure to sign a noncompetition agreement is ethical. No 39. Employees required to sign noncompetition agreements must receive additional payment/compensation (e.g., training, promotion, raise or termination notice). Yes 40. Hardship (e.g., having to move), as a result of a noncompetition agreement, to the former employee does not constitute undue hardship robbing the former employee of the ability to make a living. Yes 41. A reasonable geographic restriction within a noncompetition agreement includes a region from which an agency/practice attracts clients. Yes 42. A reasonable geographic restriction within a noncompetition agreement includes a region which an agency/practice could reasonably attract clients in the future. Yes 43. Noncompetition agreements are reasonable because the former employee can either move or seek other employment during the time and geographic restriction. Yes 44. Geographic restrictions do not hinder counselors from seeking employment outsider the restricted region. ITP No 45. The restriction of a counselor from working within a specific region would be injurious to the public welfare. Yes 46. In regions underserved by counselors, noncompetition agreements are infurious to the public welfare. Yes 47. Forcibly transferring clients to another counselor can cause injury to the public welfare. Yes 48. In view of ACA ethics, clients should be informed of any contracts or agreements between the employer and employee that could possibly affect the counselor to client relationship. Note. PEI = Protectable Employer Interests; UBE = Undue Burden to an Employee; ITP = Injury to the Public Welfare; G = Goodwill; NPR = Near Permanent Relationship; ST = Specialized Training; CI = Confidential Information; KOL = Knowledge of the Law; C = Compensation to the Employee; and R = Restrictions on the Employee; ACA = American Counseling Association; CACREP = Council for Accreditation of Counseling and Related Educational Programs.</ct> <hd id="AN0009205545-12">TABLE 2 Assessment of Restrictive Covenants--Knowledge Scales, Subscales, and Item Response Rate Quartile</hd> <ct id="AN0009205545-13"> Legend for Chart: A - Scale/Subscale(a) B - Response Rate Quartile C - Correct n D - Correct % E - Incorrect n F - Incorrect % G - Don't Know n H - Don't Know % I - χ² Probability A B C D E F G H I PEI G 1 4 110 80 21 15 7 5 p < .001 2 3 56 41 43 31 39 28 ns 3 2 33 24 63 46 42 30 p < .01 4 3 62 45 36 26 40 29 p < .05 5 4 84 61 43 31 11 8 p < .001 6 4 78 56 44 32 16 12 p < .001 NPR 7 3 47 34 67 49 24 17 p < .001 8 3 46 33 65 47 27 20 p < .001 9 3 57 41 67 49 14 10 p < .001 10 4 73 53 61 44 4 3 p < .001 11 3 56 41 60 43 22 16 p < .001 12 1 17 12 63 46 58 42 p < .001 13 3 49 35 52 38 37 27 ns 14 1 22 16 52 38 64 46 p < .001 15 1 26 19 51 37 61 44 p < .01 ST 16 1 26 19 46 33 66 48 p < .001 17 2 43 31 32 23 63 46 p < .01 18 3 55 40 50 36 33 24 ns 19 3 50 36 37 27 51 37 ns 20 4 73 53 49 35 16 12 p < .001 21 1 24 17 65 47 49 36 p < .001 CI 22 2 33 24 41 30 64 46 p < .01 23 4 101 73 22 16 15 11 p < .001 24 2 42 31 57 41 39 28 ns 25 3 47 34 58 42 33 24 p < .05 26 4 73 53 56 41 9 6 p < .001 27 2 31 22 56 41 51 37 p < .05 28 1 31 22 53 39 54 39 p < .05 UBE KOL 29 1 20 14 62 45 56 41 p < .001 30 4 84 61 43 31 11 8 p < .001 31 1 26 19 98 71 14 10 p < .001 32 1 14 10 106 77 18 13 p < .001 33 2 39 28 88 64 11 8 p < .001 C 34 2 30 22 88 64 20 14 p < .001 35 2 33 24 81 59 24 17 p < .001 36 1 23 17 83 60 32 23 p < .001 37 1 23 17 81 59 34 24 p < .001 38 2 33 24 76 55 29 21 p < .001 39 2 37 27 79 57 22 16 p < .001 R 40 2 34 25 79 57 25 18 p < .001 41 3 61 44 62 45 15 11 p < .001 42 3 61 44 59 43 18 13 p < .001 43 2 31 23 57 41 50 36 p < .05 44 4 73 53 45 33 20 14 p < .001 ITP 45 1 22 16 67 49 49 35 p < .001 46 4 77 56 53 38 8 6 p < .001 47 4 91 66 34 25 13 9 p < .001 48 4 95 69 40 29 3 2 p < .001 Note. PEI = Protectable Employer Interests; UBE = Undue Burden to an Employee; ITP = Injury to the Public Welfare; G = Goodwill; NPR = Near Permanent Relationship; ST = Specialized Training; CI = Confidential Information; KOL = Knowledge of the Law; C = Compensation to the Employee; and R = Restrictions on the Employee. (a) Numbers are item numbers. See Table 1.</ct> <hd id="AN0009205545-14">TABLE 3 Assessment of Restrictive Covenants--Agreement Scales, Subscales, and Item Response Rate Quartile</hd> <ct id="AN0009205545-15"> Legend for Chart: A - Scale/Subscale(a) B - Response Rate Quartile C - Strongly Agree n D - Strongly Agree % E - Agree n F - Agree % G - Don't Know n H - Don't Know % I - Disagree n J - Disagree % K - Strongly Disagree n L - Strongly Disagree % M - χ&sup 2; Probability A B C D E F G H I J K L M PEI G 1 4 78 56 46 33 1 1 8 6 5 4 p < .001 2 3 10 7 48 35 12 8 41 30 27 20 p < .001 3 1 9 7 18 13 10 7 44 32 57 41 p < .001 4 3 13 9 65 47 14 10 31 23 15 11 p < .001 5 4 32 23 72 52 18 13 9 7 7 5 p < .001 6 4 47 34 59 43 15 11 11 8 6 4 p < .001 NPR 7 2 13 9 39 28 21 16 37 27 28 20 p < .01 8 2 11 8 39 28 20 14 45 33 23 17 p < .001 9 2 13 9 40 29 17 13 44 32 24 17 p < .001 10 3 24 17 55 40 14 11 28 20 17 12 p < .001 11 3 25 18 44 32 17 12 31 23 21 15 p < .01 12 4 59 43 50 36 12 9 6 4 11 8 p < .001 13 4 34 25 54 39 13 9 34 25 3 2 p < .001 14 4 54 39 53 38 15 12 10 7 6 4 p < .001 15 1 3 2 3 2 4 3 48 35 80 58 p < .001 ST 16 1 7 5 19 14 21 15 50 36 41 30 p < .001 17 2 15 11 26 19 10 7 58 42 29 21 p < .001 18 3 17 12 45 33 18 13 41 30 17 12 p < .001 19 3 18 13 47 34 15 11 48 35 10 7 p < .001 20 1 5 4 16 12 11 7 61 44 45 33 p < .001 21 1 9 6 14 10 21 15 49 36 45 33 p < .001 CI 22 3 28 20 52 38 15 11 36 26 7 5 p < .001 23 4 62 45 45 33 8 5 19 14 4 3 p < .001 24 2 8 6 26 19 22 16 51 37 31 22 p < .001 25 3 37 27 39 28 19 14 34 25 9 6 p < .001 26 4 19 14 68 49 25 18 19 14 7 5 p < .001 27 3 15 11 47 34 29 21 33 24 14 10 p < .001 28 2 23 17 30 22 32 22 37 27 16 12 p < .05 UBE KOL 29 4 35 25 49 36 25 18 22 16 7 5 p < .001 30 1 8 6 6 4 12 9 48 35 64 46 p < .001 31 1 8 6 9 6 78 57 19 14 24 17 p < .001 32 1 9 6 13 9 88 65 14 10 14 10 p < .001 33 1 6 4 15 11 64 46 37 27 16 12 p < .001 C 34 1 8 6 17 12 30 22 39 28 44 32 p < .001 35 2 5 4 28 20 31 22 48 35 26 19 p < .001 36 2 12 9 29 21 40 29 33 24 24 17 p < .01 37 1 5 4 11 8 27 20 42 30 53 38 p < .001 38 2 13 9 17 12 18 14 41 30 49 35 p < .001 39 3 31 22 34 25 33 24 30 22 10 7 p < .01 R 40 2 13 9 16 12 22 16 43 31 44 32 p < .001 41 2 11 8 44 32 21 16 42 30 20 14 p < .001 42 2 10 7 38 27 32 24 37 27 21 15 p < .001 43 1 11 8 18 13 14 10 54 39 41 30 p < .001 44 3 25 18 52 38 14 10 27 20 20 14 p < .001 ITP 45 3 39 28 43 31 28 20 16 12 12 9 p < .001 46 4 62 45 54 39 14 10 4 3 4 3 p < .001 47 4 56 41 55 40 7 4 16 12 4 3 p < .001 48 4 69 50 52 38 7 5 7 5 3 2 p < .001 Note. PEI = Protectable Employer Interests; UBE = Undue Burden to the Employee; ITP = Injury to the Public Welfare; G = Goodwill; NPR = Near Permanent Relationship; ST = Specialized Training; CI = Confidential Information; KOL = Knowledge of the Law; C = Compensation to the Employee; and R = Restrictions on the Employee. (a) Numbers are item numbers. See Table 1.</ct> <hd id="AN0009205545-16">TABLE 4 Item Distribution by Knowledge and Agreement Quartiles (Q)</hd> <ct id="AN0009205545-17"> Legend for Chart: A - Knowledge Quartile B - Agreement Quartile Q4 C - Agreement Quartile Q3 D - Agreement Quartile Q2 E - Agreement Quartile Q1 A B C D E Q4 n = 8 n = 2 n = 0 n = 2 Q3 n = 1 n = 6 n = 5 n = 0 Q2 n = 0 n = 3 n = 5 n = 4 Q1 n = 3 n = 1 n = 2 n = 6</ct> <ref id="AN0009205545-18"> <title> REFERENCES </title> <blist> <bibl id="bib1" idref="ref1" type="bt"></bibl> <bibtext>American Bar Association. (1990). Model rules of professional conduct. Chicago: Author.</bibtext> </blist> <blist> <bibl id="bib2" type="bt"></bibl> <bibtext>American Counseling Association. (1997). ACA code of ethics and standards of practice. Alexandria, VA: Author.</bibtext> </blist> <blist> <bibl id="bib3" type="bt"></bibl> <bibtext>American Counseling Association. (2002). Licensure chart--Requirements for mental health counselors credentials. Retrieved December 11, 2002, from <ulink href="http://www.counseling.org/members/licensure.htm">http://www.counseling.org/members/licensure.htm</ulink></bibtext> </blist> <blist> <bibl id="bib4" type="bt"></bibl> <bibtext>American Law Institute. (1981). Restatement of the law second--Contracts 2d, vol. 2. St. Paul, MN: Author.</bibtext> </blist> <blist> <bibl id="bib5" type="bt"></bibl> <bibtext>American Medical Association. (1997). Current opinions of the council on ethical and judicial affairs of the American Medical Association. 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Southern California Law Review, 57, 531-546.</bibtext> </blist> <blist> <bibl id="bib10" idref="ref6" type="bt"></bibl> <bibtext>Dick v. Geist, 107 Idaho 931, 693 P. 2d. 1133 (Idaho App. 1985).</bibtext> </blist> <blist> <bibl id="bib11" type="bt"></bibl> <bibtext>Gerstein, L., & Brooks, D. (1990). Introduction for a special feature. The helping professions' challenge: Credentialing and interdisciplinary collaboration. Journal of Counseling & Development, 68, 475-476.</bibtext> </blist> <blist> <bibl id="bib12" type="bt"></bibl> <bibtext>Getty, M. (1986). Enforceability of non-competition covenants in physician employment contracts: Confusion in the courts. The Journal of Legal Medicine, 7, 235-262.</bibtext> </blist> <blist> <bibl id="bib13" type="bt"></bibl> <bibtext>Hall v. Willard & Woolsey, P.S.C., 471, S.W. 2d. 316, 317 (Ky. 1971).</bibtext> </blist> <blist> <bibl id="bib14" type="bt"></bibl> <bibtext>Hosie, T., West, J., & Mackey, J. (1988). Employment and roles of mental health counselors in substance-abuse centers. Journal of Mental Health Counseling, 10, 188-198</bibtext> </blist> <blist> <bibl id="bib15" type="bt"></bibl> <bibtext>Kleist, D., & White, L. J. (1997). The values of counseling: A disparity between a philosophy of prevention in counseling and counselor practice and training. Counseling and Values, 41, 128-140.</bibtext> </blist> <blist> <bibl id="bib16" type="bt"></bibl> <bibtext>Lawless, L. L., Ginter, E. J., & Kelly, K. R. (1999). Managed care: What mental health counselors need to know. Journal of Mental Health Counseling, 21, 50-65.</bibtext> </blist> <blist> <bibl id="bib17" type="bt"></bibl> <bibtext>LeBlang, T., Basanta, W., & Kane, R. (1996). The law of medical practice in Illinois. Rochester, NY: The Lawyers Co-operative Publishing Co.</bibtext> </blist> <blist> <bibl id="bib18" type="bt"></bibl> <bibtext>MacMurray v. Bateman, 221 Ga. 240, 144 S.E. 2d. 345 (1965).</bibtext> </blist> <blist> <bibl id="bib19" type="bt"></bibl> <bibtext>Palm, K. M., & Gibson, P. (1998). Recovered memories of childhood Clinicians' practices and beliefs. Professional Psychology: Research and Practice, 29, 257-261.</bibtext> </blist> <blist> <bibl id="bib20" type="bt"></bibl> <bibtext>Polusny, M. A., & Follette, V. M. (1996). Remembering child sexual abuse: A national survey of psychologists' clinical practices, beliefs, and personal experiences. Professional Psychology: Research and Practice, 27, 41-52.</bibtext> </blist> <blist> <bibl id="bib21" type="bt"></bibl> <bibtext>Valiulis, A. (1985). Covenants not to compete: Forms, tactics and the law. New York: Wiley.</bibtext> </blist> <blist> <bibl id="bib22" type="bt"></bibl> <bibtext>West, J., Hosie, T., & Mackey, J. (1987). Employment and roles of counselors in mental health agencies. Journal of Counseling and Development, 66, 135-137.</bibtext> </blist> <blist> <bibl id="bib23" idref="ref7" type="bt"></bibl> <bibtext>West, J., Hosie, T., & Mackey, J. (1988). The counselor's role in mental health: An evaluation. Counselor Education and Supervision, 27, 233-238.</bibtext> </blist> <blist> <bibl id="bib24" type="bt"></bibl> <bibtext>Wyatt, T. (1997). Restrictive covenants: An assessment of the professions' knowledge and agreement with restrictive covenants. Unpublished doctoral dissertation, Southern Illinois University, Carbondale.</bibtext> </blist> <blist> <bibl id="bib25" type="bt"></bibl> <bibtext>Wyatt, T., Daniels, M. H., & White, L. J. (2000). Noncompetition agreements and the counseling profession: An unrecognized reality for private practitioners. Journal of Counseling & Development, 78, 14-20.</bibtext> </blist> <blist> <bibl id="bib26" type="bt"></bibl> <bibtext>Zimpfer, D. (1996). Five-year follow-up of doctoral graduates in counseling. Counselor Education and Supervision, 35, 218-229.</bibtext> </blist> </ref> <aug> <p>By M. Harry Daniels; Lyle J. White and Tracey Wyatt</p> <p></p> <p>M. Harry Daniels, Department of Counselor Education, University of Florida, Gainesville Correspondence concerning this article should be addressed to M. Harry Daniels, Department of Counselor Education, 1215 Norman Hall, PO Box 117046, University of Florida, Gainesville, FL 32611-7046 (e-mail: harryd@coe.ufl.edu).</p> <p>Lyle J. White, Department of Educational Psychology and Special Education and Psychological Services at the University's Clinical Center, Southern Illinois University, Carbondale</p> <p>Tracey Wyatt, Four Rivers Behavioral Health of Paducah, Kentucky. The authors thank Eugene Basanta for his contributions to this study.</p> </aug> <nolink nlid="nl1" bibid="bib50" firstref="ref2"></nolink> <nolink nlid="nl2" bibid="bib46" firstref="ref3"></nolink> <nolink nlid="nl3" bibid="bib44" firstref="ref4"></nolink> <nolink nlid="nl4" bibid="bib34" firstref="ref8"></nolink> <nolink nlid="nl5" bibid="bib31" firstref="ref9"></nolink>
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  Data: Noncompetition Agreements: How Informed Are Counselors?
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  Data: <searchLink fieldCode="AR" term="%22Daniels%2C+M%2E+Harry%22">Daniels, M. Harry</searchLink><br /><searchLink fieldCode="AR" term="%22White%2C+Lyle+J%2E%22">White, Lyle J.</searchLink><br /><searchLink fieldCode="AR" term="%22Wyatt%2C+Tracey%22">Wyatt, Tracey</searchLink>
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  Data: <searchLink fieldCode="SO" term="%22Journal+of+Counseling+%26+Development%22"><i>Journal of Counseling & Development</i></searchLink>. Win 2003 81(1):84-92.
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  Data: 9
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  Data: 2003
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  Data: Information Analyses<br />Journal Articles<br />Reports - Research
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  Data: <searchLink fieldCode="DE" term="%22Competition%22">Competition</searchLink><br /><searchLink fieldCode="DE" term="%22Contracts%22">Contracts</searchLink><br /><searchLink fieldCode="DE" term="%22Counseling%22">Counseling</searchLink><br /><searchLink fieldCode="DE" term="%22Counselor+Attitudes%22">Counselor Attitudes</searchLink><br /><searchLink fieldCode="DE" term="%22Employment+Opportunities%22">Employment Opportunities</searchLink><br /><searchLink fieldCode="DE" term="%22Professional+Development%22">Professional Development</searchLink>
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  Data: 0748-9633
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  Data: Assesses American Mental Health Counselor Association members' knowledge of legal bases for noncompetition contracts and their agreement with the legal opinions and also assesses the degree of similarity and dissimilarity between members' knowledge of and agreement with the legal opinions. Results showed that counselors are better prepared to look after the welfare of their clients than their own employment interests. (Contains 26 references and 4 tables.) (GCP)
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