How much flexibility is there is an agency contract?

NedRN · Jan 11, 2014

I doubt there would be any reason to change the arbitration clause. If arbitration costs were shared by the agency and the nurse, the nurse would initiate more cases at the agency's expense. I think you should live with that one. If you are really into legal stuff, you do want the arbitrator chosen per their association's guidelines and methods, you don't want to accept one that is biased to the agency. Arbitration will only come up if you believe the rewards outweigh the potential cost if you lose, and the contract was clearly written and breached by the agency. Most contracts are written by the agency's lawyers and are highly protective of the agency's interests. Also, the usual issue would be termination and that is invariably done by the hospital for cause (fabricated if necessary) so you may not have a direct cause against the agency at all except to fight about damages. So in real life, few suits are brought by travelers against agencies. That said, I have done so once and won. I know of one other such case as well. But traveler suits are extremely rare - just not worth the effort. Most lawsuits are more about emotions of being wronged rather than rational decisions. The cost/time/benefit ratio almost never work out and that was true for me too, despite winning 5K (the maximum for DC small claims court). I had to go to court several times and was fighting unassisted against a medium sized law firm with offices in dozen states.

There are some common issues in contracts, and depending on the agency, you can get them changed. The most egregious is the actual statement that you are an at-will employee or language to that effect. This means you can be terminated at any time for any reason, yet the penalty clauses of the contract still apply. This is quite common, and in general I refuse to work under such a contract. I did once because at-will was so pervasive throughout the contract, it was not just one clause that could be simply changed. The assignment went well in the Virgin Islands - bad language doesn't necessarily make a bad contract.

The most common complaint about contracts is do-not-compete language which ostensibly prevents you from switching agencies at the hospital you were "introduced" to by an agency or taking a staff job without the agency getting a large placement fee. I don't think that one is worth fighting about, if it applies at all it will be in the agency to hospital contract that you are not a direct party to, and there is nothing that can be done. If it really prevents you from getting that staff job or switching from an underpaying agency (your research should prevent this from happening before the fact - more below), just keep traveling and come back in 6 months when the do-not-compete clause expires. In the past, hospitals were happy to pay the fee to get the right employee and the costs are similar to their own costs of recruiting the right nurse.

The penalty clauses should be fair and measurable, not open ended. Generally the fairest method and most common method is to have a missed hour penalty. This should be primarily based on the cost of provided housing that the agency will be out if the contract ends prematurely. You should ask for a similar method if there is not one specified (arbitration clause is not an acceptable substitution - it is not measurable or predictable). You should scrutinize the actual amount carefully - it should cover the agency's actual damages only. I wouldn't work for an agency that includes lost profits in damages (that also is not really measurable, and doesn't meet the fairness test either).

Other than negotiating and juggling benefits and compensation in general, the most unfair part of compensation is usually the overtime rate. If it is based on an artificially low base rate such as $15 or $25 an hour, the OT rate cannot be fair or a good incentive for the traveler to work more hours and make the agency a lot more money. At a minimum, you should roll up the per diem and the hourly and base OT on that - it should be somewhere close to $50 an hour. But pick your battles. No point in fighting about this one if no OT is available and you won't work it anyway. Negotiate important stuff.

I could write thousands of more words about each topic mentioned above, but that is probably too much anyway to absorb. Nor do you really need if for the most part, especially for your first assignment. If you do understand the above, you know more than most recruiters - which is a problem. They may not understand your issue, nor have the power to change it. So you will have to educate your recruiter about the specific issue and get them to take it up with their manager (who hopefully does understand the issue). OT, for example, is an easy math exercise, but will still be difficult even for a manager to get. Use a bill rate of $60 an hour, with an OT rate of $90 an hour to understand how excessive an agencies profit is on your extra work at $30 an hour OT rate (remember that the agency bases their fair profit margin on 36/40 hours a week and everything above that with all their costs paid is pure and unexpected profit).

Finally negotiation and knowing if offers are fair. Information is power, and a large leg of effective negotiation. The only way to collect relevant information is from agency competitors. So interview 25 agencies, select 5 of them that you communicate well with (you can't negotiate if you can't communicate), and sign up fully. Now you can compare similar assignments in similar areas to know for sure what you are worth. That will determine haggling room. That will change once you have completed a successful assignment - you are an unknown risk right now and will have more value once you have proved yourself.