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Behavior

What do Non-Competes have to do with Autism and ABA

By August 16, 2012January 11th, 20228 Comments

This blog post is different from our typical writings about Autism and Behavior.  I guess it is about “Behavior” – but a somewhat different angle…

We feel extremely strongly against non-competes in general.  However, specifically, 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; Opinion 9.021).  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 the age of 24 and make her an indentured servant.  She decided to call their bluff, and establish her own business.  Her business was founded on the principles of serving children and providing a great, stimulating and fear-free environment for employees.

From those founding principles, we derive our employment philosophy to NEVER 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 to 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 have a desire to make an impact working with individuals with autism.  Handcuffing them 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.  In the corporate world, people typically have more business savvy 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 go 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 is 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 we believe we can make an impact in 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 plain unethical.  Our field has more demand for practitioners than available supply.  Legal handcuffs on the precious few is 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 truly the mission of your business?  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, do your research about 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 its ok to prevent you from earning a livelihood in a field where you’re helping others.

◦           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 providing therapy to children with autism?

Above all, there are providers out there who do good work and treat their employees well, 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. 

8 Comments

  • M says:

    Good for you!! I am a former employee of the company you are referring to. They wouldn’t have to worry about having a non compete if they treated their employees well. Everyone that works there is in it for the kids and would stay if they weren’t constantly beaten down. Again, Good for you!

  • Emily says:

    I completely agree with everything you’ve stated here. This exact thing happened to me, and I feel absolutely lost now. I signed a non-compete with a local ABA company without realizing what I was doing. I thought it was a little strange at the time, but I really needed a job and I really loved doing ABA and wanted to build a career with it. I actually have my degree in special education but I chose to work for a private ABA company hoping that I could work there for many years. Well, I then realized that I did not agree with the philosophy of that company. After about eight months, it got to a point where I just couldn’t stay anymore. I just felt like their main concern was the business, not the kids. It was obvious that they did not care about me as an employee either. They wouldn’t even let me work towards my BCABA because I would have had to work with another BCBA in the city (I can’t be employed by the same company that is supervising my BCABA hours) and they wouldn’t allow that.

    So now, I need to wait two years to do ABA within a distance of 30 miles, which is pretty much all of the BCBA’s around here. I haven’t found one outside of 30 miles. By the time I AM allowed to do ABA now, I think my life will take a completely different direction.

    And am I still allowed to be friends with the families under a noncompete? I don’t think it’s fair to the families or the children I worked with that I just have to disappear. It’s just so sad. I almost want to fight this, but I don’t think I’ll stand a chance.

    Anyways, thanks for the article. I’m glad that others are noticing this is very unethical.

    • Casey says:

      Emily! I hope that you fought the non-compete. I did and it was greatly reduced. The non-compete is almost up and I couldn’t be happier. Now, I am looking to re-enter the field and every job offer comes with a non-compete. I thoroughly investigate the companies and now am having an attorney look over the noncompetes. It’s overwhelming trying to decide what to do and which company to work for. Noncompetes are ridiculous!!! But, I guess they are a norm now.

  • Casey says:

    My ex-boss has hit me with a civil suit over a non-compete. I am about to lose my mind. If this holds up in court, then I will not be able to provide for my family. I have 5 children. I have been studying ABA for the last 5 years and chose to take my career elsewhere after working for this company for 8 months. There were so many ethical violations and just plain unprofessionalism. I just couldn’t take it anymore. My main focus is on providing effective therapy for children and that was not a place for it.

    • Brooke says:

      After looking into the issue and talking with a lawyer in my state, I found out that a similar non-compete that I had to sign would not even hold up in court. For one, I didn’t get paid enough to justify it. (The lawyer said it would be like McDonald’s forcing me to sign a non compete to prevent me from going to Burger King.) Second of all, the supply doesn’t meet the demand. Third, my state (and most states) would take the favor of the employee if it is limiting them on future employment. You’re specific skill set is geared toward a specific job. They can’t limit you from getting a job. And finallly, their non-compete should be very specific about where you are not able to work and for how long. It would be a good idea for you to call a contracts lawyer and ask them what their thoughts are. A lot of them will give you the first half hour free. Good luck to you.

      • Courtney says:

        Brooke – agree with your thoughts. Only caution I would add is that in our legal system, the path to even getting to court is extremely expensive. So even if something is never going to hold up in court, the legal expenses involved prior to even getting to court are pretty substantial for any individual employee. That’s how these instruments are used – as financial deterrents on employees.

  • Cm says:

    This needs to be addressed. A talk at ABAI or FABA, this severely limits practices.

  • Sally says:

    I want to thank you for this wonderful and enlightening article! My daughter and I read this during her interview process so she was fully informed and understood the gravity of signing a non-compete. She was presented with a non-compete today during her orientation with an ABA company. She was never explained this prior. Although I believe she would have fully read this contract she came with complete knowledge of this practice. She would not sign and explained why. I hope someday very soon she will have the opportunity to work for Bierman or other company with the same objectives and mission. She too is a young person fresh out of college with the desire to make a difference in a child’s life. Hats off to you Bieman for making this bold statement.