Dentists and Non-Competition Agreements in Illinois: Is Yours Worth the Paper It’s Printed On?
Jordan Uditsky • October 15, 2019
There are over 4,800 dentists currently practicing in Illinois, according to the Bureau of Labor Statistics. Only four states have more dentists than the Land of Lincoln. That number makes for a competitive market, as well as one that provides a rich environment for dental professionals to find and seize new opportunities, either by joining another practice or starting their own.
As attorneys for the dental profession, we often receive questions about what limitations, if any, dentists can face from or impose on colleagues with whom they currently practice. Specifically, many dentists have signed or will be asked to sign non-competition or non-solicitation agreements, either as stand-alone documents or as part of an employment agreement.
But just because something is in writing doesn’t mean its worth the paper it's written on. Illinois courts will not enforce non-competition provisions that are unreasonably and unjustifiably broad or those unsupported by consideration. Poorly drafted – and thus unenforceable - agreements can give an employer a false sense of security, or cause a dentist to unnecessarily reject job offers or other opportunities.
This is not to say that all non-competition agreements in Illinois are invalid – those that meet the law’s requirements can be enforced. Therefore, it is important that dentists understand precisely what the law permits and what it doesn’t, no matter what side of a proposed agreement you may be on.
Non-Competition vs. Non-Solicitation
People often use the term “non-compete” as a catch-all for two related, but distinct,
limitations on future employment. But non-competition clauses and non-solicitation provisions are very much different, and the law treats them as such.
Typically, a non-competition agreement will purport to limit an employee’s ability to engage in their current profession or occupation within a specified geographic area for a set time. For dentists, this can mean that they agree not to treat any patients in the identified area until the end of that period.
Non-solicitation agreements, on the other hand, only limit an employee’s ability to actively seek the business of the employer’s current patients/clients/customers for a given period, though they are free to set up shop and do business.
Typically, courts will look at non-solicitation agreements less skeptically than they will non-competition agreements, as they are more limited in scope and more tailored to protect a business’ legitimate business interest in their existing clients. Dentists and physicians, however, can’t ethically stop a current patient from going to a former dental associate for treatment on their own volition if the dentist did not affirmatively solicit them.
Reasonableness
Every year, employees and employers file scores of lawsuits in Illinois seeking to enforce or strike down non-competition agreements. This has given Illinois courts ample opportunity to opine on these contracts and develop the contours of what is and what is not permitted. These contours have evolved over the years, generally in the direction of limiting the ability of employers to keep their former associates from making a living how, where, and when they choose.
The two primary factors that a court will consider when evaluating a non-competition agreement are its reasonableness and whether it is supported by sufficient consideration. Specifically, for a non-compete to be enforceable:
• Its geographic and temporal limitations must be no greater than needed to protect a legitimate business interest;
• Its restrictions must not impose an undue hardship on the employee; and
• Its restrictions must not be detrimental to the public.
This evaluation is very fact-specific. For a dental practice, what may be considered a reasonable geographic restriction in Arlington Heights, where ample opportunities to practice exist and hundreds of thousands of patients live nearby, may be significantly different than what would be reasonable in the 383 square miles of downstate Bond County, population 16,948.
Consideration
In terms of consideration, a necessary element in any enforceable contract, the promise of continued employment used to be seen as sufficient consideration for a non-competition provision. It still may be, but courts have begun to look at the totality of the circumstances in each individual case to make the determination. A promise of continued employment for an at-will employee has been found to be adequate consideration to render a restrictive covenant enforceable, but only if the employment lasted at least two years after the agreement was signed.
Where there is no additional compensation, such as a raise or special benefits, given to the employee in exchange for signing the non-compete, and the employee leaves less than two years after executing the restrictive covenant, courts have determined that the consideration is insufficient and the restrictive covenant is unenforceable.
Proposed or existing dental non-competition agreements can’t be evaluated in a vacuum; they must be drafted carefully and in the context of the specific practice and the market in which its provisions would be enforced. Any dentist wishing to or asked to enter into a non-competition agreement should consult with an experienced attorney who can help them make informed decisions about their rights.
You Focus On Your Patients. We’ll Focus On You.
At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you.
Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation.
Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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These self-appointed ADA compliance "testers" have filed thousands of nuisance ADA suits that have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013, with over 4,000 suits filed in 2024 alone. Many plaintiff's law firms file hundreds of cookie-cutter ADA lawsuits each year. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims. While these suits can focus on any number of alleged ADA shortcomings, those relating to website accessibility (discussed in detail in this earlier post ) filed by a handful of law firms and serial plaintiffs have earned the scorn of small businesses and practices across the country. That's because these "testers" and the lawyers who represent them specifically target small businesses, as they typically have limited means to defend themselves, may not be able to discern between legitimate and bogus claims, and often see a quick payoff as the path of least resistance. Here’s how the shakedown typically goes down: A plaintiff or their attorney sends the practice a demand letter in which they claim that the practice’s website is inaccessible to people with disabilities (e.g., missing image alt text, inaccessible forms, incompatible with screen readers). They cite a violation of Title III of the ADA. They make a demand for a cash settlement, often ranging from $2,500 to $25,000, alongside a request for accessibility fixes. The business/practice cuts a check in exchange for a release of any ADA claims by that plaintiff related to the website. 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