Follow
Share

This organization has had employees sign something saying they will not have contact with the clients they did caregiving for after they leave the employment of this company. Since there is a former caregiver my friends had I know would like to visit them (I strongly believe she was let go from the company since she wanted to get a senior advocate for my friends-and maybe other clients as well). I was just wondering if the company could actually legally enforce this.

All the companies I have worked with have a clause that prevents a former caregiver from working with a former client for a period of up to one year or there could be a fine up to over $50,000. This is to prevent a client from stealing a good caregiver from the company with offering them a private home care position. it’s in the contract or you can call them to confirm.
Helpful Answer (8)
Reply to Lizhappens
Report

The contract I am familiar with has a non competition clause to protect the agency from having a caregiver and client deal directly with each other thereby cutting the agency out of the loop, I don't think they can include anything restricting simple visits.
Helpful Answer (6)
Reply to cwillie
Report
polarbear Dec 26, 2018
I agree with cwillie. Also, the non competition clause usually has a time limit. It can't say the caregivers can not work for former clients forever.
(6)
Report
It is a common employment contract clause that you can't work for a client or a competitor for a period of time after leaving a company's employ. But it has been ruled that the time limit has to be specified and can't be an unreasonable length of time or it would be considered unenforceable.

I have never heard of a clause that says you can't even speak to or socialize with a client or competitor. That doesn't sound enforceable to me. If the caregiver wants to challenge it, they would probably be successful.
Helpful Answer (6)
Reply to Marcia7321
Report

A no contact clause is permitted and enforceable in an Employee Separation Agreement. There was also most likely confidentiality, non disbaragement, non disclosure and a non compete. If she contacts the client, it would be a violation because of the confidentiality surrounding customer lists.

If your suspicions surrounding her termination are correct, it is in violation of Whistleblower protection which can invalidate any agreement. If the caregiver is smart, she contacted an attorney who would have advised her to stay away from your friend at the current time.

My advice to you is stay away from the caregiver at the present time. You could bring on a wealth of problems without realizing it.
Helpful Answer (5)
Reply to tacy022
Report

I imagine if the former caregiver made a phone call or popped in for tea and cookies in a purely social context no one from the agency would ever know or care. But if the thought is to continue to stir up trouble for the former agency then that is exactly why these kinds of clauses are included in contracts and it would be better to let sleeping dogs lie.
Also, people who work in service industries can deal with many clients and although your friends may regard her as more than a former employee it is possible that she doesn't feel the same way and is using this contract clause as a way to create distance between them and terminate the relationship.
Helpful Answer (5)
Reply to cwillie
Report
OctoberAngels Dec 29, 2018
Yes, I totally agree here. If the aid is replying to requests for visits with this clause, they are definitely wanting distance, and verbally creating a boundary.

Thanks cwillie for capturing that piece. I do think some of us were a bit confused about the question. Great point!
(0)
Report
The problem with a caregiver calling or visiting is they are a former employee and it is a HIPAA violation. Employees should not have client information on private, unsecured devices. These are serious liability issues for an employer which is why the agreements are signed. It would not be silly for the company to sue because they could be fined or lose licensing if information was exchanged during the time of employment.
Helpful Answer (4)
Reply to tacy022
Report

Most companies have that agreement for the protection of the client, as well as their company. It is improper for the caregiver to continue a relationship with the client as the client could be exploited financially, emotionally, physically. There are unscrupulous people in every field and home health is no exception.
Better to keep a professional relationship with the finer staff for everyone’s protection. Staff has been known to lose their professional license if the client would accuse them of stealing, etc.
Helpful Answer (4)
Reply to Addie11
Report

If a person is no longer with the company she is free to see who she likes however if she signed a contract stating that she will not see former clients after she leaves the company but she sees former clients anyway and the company finds out she might encounter trouble for breaching the contract. But if the company can't fire her since she doesn't work there anymore she might want to go over the contract and see what power the company does have if she sees clients after she leaves the company.
Helpful Answer (2)
Reply to Eyerishlass
Report
polarbear Dec 26, 2018
The company can sue their former caregivers for monetary damages.
(2)
Report
See 2 more replies
I think there may be some confusion about your question. It sounds, to me at least, like your friend wants his former caregiver to come visit them and that you suspect the agency fired the caregiver because they suggested that the senior needed an advocate. I get the impression, and I may be entirely off base, that maybe the caregiver got a whiff that something in the family wasn't right and perhaps the friend/senior was being abused in some way by a family member giving rise for the need for a senior advocate.

I kind of work in the industry (Ok, I'm a paralegal working in a law firm that does elder law, but certainly NOT an expert or able to give legal advice). A lot of times I get calls from family members who have concerns about the caregivers who are getting, shall I say, "overly familiar" with their clients. It gets particularly ugly when the caregiver marries the client. The clients are often vulnerable, and in particular most vulnerable to the persons providing them care on a daily basis. I get calls from families where a caregiver has tried to insinuate themselves into the finances going so far as to get Power of Attorney and adding themselves on to accounts or having the client name them as a "pay on death" beneficiary on accounts. We also get calls from children just finding out that their parent essentially left everything to the caregiver in their will or trust, confused and bewildered how that happened.

My own boss has 24/7 care for her husband. Caregivers have asked for money. One still calls even years later after she stopped being his caregiver to ask for favors and money for some emergency she has. When a relief caregiver passed away suddenly (not while on the job), his family contacted my boss to ask if she would pay for the funeral or to help send his remains overseas to his home country. Another asked for help in getting them divorced from their spouse in another country.

I'm saying this for perspective. I'm sure your friend has very fond feelings for the caregiver. But I think you have to see this from other points of view. The company does not want to risk getting involved in litigation from a family that hired them and maybe even fired the caregiver for overstepping the line of professionalism. I understand that it is very easy for the caregiver and client to form a bond when spending so much time together. But these policies are to protect the company AND the client. It tries to ensure that there is a professional distance between client and caregiver. It is a job, afterall. It's ok to care for your client and for the client to appreciate the care. But there is a professional line that has to be maintained so that it doesn't turn from being a caregiver into being an abuser, even unintentionally. Not all, or even most, caregivers cross this line. But it happens frequently enough to keep our phones ringing.

Whether or not you suspect any abuse or inappropriate actions by the caregiver, I just wanted to provide some additional perspective as to "why" those rules are in place.
Helpful Answer (2)
Reply to Gabbygirl
Report

Hi, let me try to answer. I do have some professional experience in this area.

The answer is yes and no. I will explain. The agency's main goal is to prevent competition. Prevent employees from quitting just to privately care for that same person. In reality most home health aids make better money doing private pay jobs.

We typically had employees sign various types of non-competitive clauses banning them from using our patient list as a personal means to get side work. Having access to our patients is protected under HIPPA. If that employee was not with the company they would never know Sally Sue needed nursing care.

It's also done to protect the patients from predatory behaviors from people who might exploit that need. And it's done to prevent workers from approaching every client offering the same service $x dollars cheaper if agreed to do privately.

Having said that. If a client/patient chooses to share personal information that is their choice. Once an employee leaves ,the previous employer has no control over them.

It's the profit loss agencies care most about, not the friendships developed. The wiggle room is there but is still a fine line as well. That is why I said yes and no.

If a personal aide was with you a long time and moved on to a different company. It's almost cruel to suddenly cut that off depending on the people involved.

A visit should be no problem. Just don't have any other employees of that agency around when you do.

And meeting at Starbucks for coffee in public where you could have just bumped into each other randomly :) , can not be challenged.

Most of the time once someone leaves we move on to filling the position. We give the speech, but honestly, it's the minority of people that ever become problems.

I wouldn't worry too much. An absolute ban is not possible legally and would be hard pressed to be enforced comprehensively.

Hope that helps. I am no lawyer, but that has been my medical field HR experience anyway.
Helpful Answer (2)
Reply to OctoberAngels
Report

See All Answers
Subscribe to
Our Newsletter