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This blog post is different from our typical writings about Autism and Behavior.  I guess it is about “Behavior” – but from a somewhat different angle. What do non-competes have to do with autism and ABA?

We feel extremely strongly against non-competes in general.  However, in our field of working with individuals with autism, a noncompete is downright unethical and abhorrent.  It is akin to preventing a medical practitioner from treating patients (interestingly, the American Medical Association has long held that restrictive non-compete covenants are unethical).  Unfortunately, several other “large clinics” feel otherwise.

Our business was established several years ago when a large ABA (Applied Behavior Analysis) therapy clinic in town (they often boast in the media about being “100% Not for Profit”) threatened our founder with legal consequences if she didn’t sign a sweeping non-compete for the entire state of Indiana.  They wanted her (back then, an employee at that clinic) to sign her life away at 24 and make her an indentured servant.  She decided to call their bluff and establish her own business.  Her business was founded on serving children and providing a great, stimulating and fear-free environment for employees.

We derive our employment philosophy from those founding principles NEVER to have any non-competes.  In our simple minds, loyalty is not a signature on a legal document.  That is the despicable exploitation of fear, need and naiveté.  We believe we can inspire and motivate people to be part of and excel on our team.

Non-competes are for C-level executives and high-level sales individuals carrying a company’s Rolodex of contacts.   Employees in our field are typically recently out of school and want to make an impact working with individuals with autism.  Handcuffing and preventing them from earning a livelihood and helping people is unconscionable.  Especially when they are typically not versed in the corporate/ legal world nor have the money to defend themselves in legal battles.  People typically have more business savvy in the corporate world to assess one-sided contractual obligations.  Does the same apply to a twenty-something-year-old therapist taking their first steps in the world of ABA in an entry-level position??

Our simple minds believe that our employees will stay with us because they love working here.  Not because of petty, exploitative legal threats.  If we cannot provide an environment that best fulfills an employee’s aspirations and potential, we’d be happy to see them establish their careers elsewhere.

Our beliefs are also shaped by the fact that we are entrepreneurs.  And non-competes are a tax on entrepreneurship and progress.  True entrepreneurship believes in making a dent in the universe… not in profiteering from fear-mongering (that’s the domain of smugglers, pirates, mobs etc.).  What makes our country great is the spirit of entrepreneurship.  We believe in fostering that spirit, not stifling it.. especially when it is in a field that is a force for good.  Interestingly, it states such as California, where non-competes are essentially illegal, that are thriving hotbeds for entrepreneurship (https://hbswk.hbs.edu/item/6759.html).

Finally, the biggest question… ethics.  We are in this field because we love working with children and believe we can impact the lives of children with autism.  And because we are not one of those places that simply pay false lip service to feel-good messages in apocryphal media ads, we believe that preventing any human being from helping a child with special needs is plainly unethical.  Our field has more demand for practitioners than the available supply.  Legal handcuffs on the precious few are morally bankrupt and an obvious symbol of naked greed and power.

In summary – here are a few thoughts for the various stakeholders in this field:

  • For Parents:  If your provider has non-competes on their employees, how happy are they?  And if they aren’t happy, how effective are they?   Figure out for yourself what the fundamental motivation for your provider is. Use your own moral compass to judge the owners’ ethics and morality.
  • For Providers/ Clinics who slap non-competes on young unsuspecting individuals looking to change lives through their work:  What’s your business’s mission?  Are you really working to help individuals with autism?  Reassess your purpose and raison d’être.  This is what gives our entire field a bad name.  If you’ve been fortunate to make something out of opportunities provided to you, why do you want to prevent others from doing so?  In Eisenhower’s words, “you don’t lead people by hitting them over the head – that’s assault, not leadership”.
  • For Employees under non-competes as well as potential employees looking for employment in the field of ABA (or elsewhere):

◦           If you’re already employed by a clinic with a non-compete, research state law.  Seek out your own legal advice… understand the “blue-pencil” test, other relevant scope issues and what that means for your contract and your home state. Ask your employer why preventing you from earning a livelihood in a field where you’re helping others is okay.

◦           If you’re a potential employee, a recent graduate or new to the workforce in general, ask why your prospective employer has a practice of non-competes.  Do they own your productive existence?  What trade secrets or patents are you expected to garner in providing therapy to children with autism?

Above all, there are providers who do good work and treat their employees fairly and without legal entrapments.  Seek them out – and if you can’t find them, do yourself the biggest favor and strike out on your own.  Start your own practice, become unstoppable and know you’re doing the greatest thing ever.  We encourage and salute you…

PS: We’ve been thinking about this post for a while but were tipped over the edge when one of the largest ABA clinics in town threatened us with legal action because we hired a brave young employee who stood up, made a choice and refused to be cowered down.  To that clinic, we say (you know who you are very well) you’re welcome to contact any/ all of our employees (you know our number. You made several sneak calls already to figure out the employment status of your departed employee).  We believe our employees will independently choose what’s best for them… stay or leave.  And we are confident our leadership, people skills and business ethics trump your “familial legal” connections.  Anyday.

We’re here to support our clients and families. Parents and caregivers interested in Bierman’s services can reach the intake team by calling 800-931-8113 or emailing start@biermanautism.com.

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