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by Allan Barsky, JD, MSW, PhD
When social workers think about their ethical obligations, they often consider their duties to clients, society, and the profession of social work. Standard 3.09 of the National Association of Social Workers Code of Ethics (2021), however, reminds us that we also have obligations to our employers. Obligations to employers are defined by organizational policies and employment contracts.
A contract is an exchange of promises between two or more individuals or organizations. When you agree to work for an agency, you are promising to abide by its policies, including the terms of any employment contract that you sign. If you violate the terms of an employment contract, your employer may have legal grounds to terminate your contract or impose other disciplinary actions (e.g., limiting your areas of practice at the agency or denying promotion requests). Further, if the breach causes damages for your employer, you may be legally responsible for compensation.
When an agency offers a job, you may be inclined to sign the employment contract without thoroughly reading its terms or questioning concerning provisions. Given your excitement about having a job offer, you may not want to raise questions that could jeopardize it. Some employment contracts are long and complex, filled with legal jargon and archaic terms. Despite your desire to lock down the job as quickly as possible, it is prudent to ensure that you have a clear understanding of key contractual terms before signing. If you do not understand specific terms or have concerns about particular contractual provisions, consulting an employment attorney may be warranted.
Contents of Employment Contracts
An employment contract will typically include provisions regarding your job description, salary, employee benefits (e.g., health insurance, retirement plans), work hours, duration of employment (e.g., probation period, specified term, or ongoing), licensure and continuing education requirements, and ethical policies or codes of conduct that you will be expected to follow. Many provisions are straightforward and align with reasonable agency expectations for social workers as employees. Agencies may present certain terms as “non-negotiable” – in other words, your only choice is to agree or reject the terms of the contract as written. The agency may express unwillingness to vary from its standard provisions. In some instances, you may be able to negotiate terms, such as your salary and work hours. Note that it is important to read the terms of the contract even if you believe that you do not have significant power to negotiate. Ensure that you truly agree with the terms of the agreement, that you are prepared to live up to the terms of the agreement, and that you will not be surprised about the agency’s expectations.
Two types of contractual provisions that I would like to highlight for special consideration are confidentiality provisions and noncompete clauses.
Confidentiality Provisions
Confidentiality provisions refer to agency expectations regarding which types of information must be kept private (i.e., not shared with people outside the agency). Confidentiality provisions may also describe particular exceptions to confidentiality. As social workers, we often think of confidentiality in terms of our duty to protect information that clients share with us. Agency provisions for confidentiality often align with the provisions in the NASW Code of Ethics (2021), including exceptions for situations in which a social worker may need to share information with others to protect the client or others from serious, imminent, and foreseeable harm.
Note that confidentiality clauses may extend beyond our duty to protect client confidentiality. Confidentiality clauses may restrict your ability to share information about the agency itself, such as internal documents regarding the agency’s strategic plans, notes from staff meetings or case conferences, information about legal actions by or against the agency, trade secrets, or the agency’s proprietary models of intervention. For instance, if an agency has certain methods of intervention that they do not want shared publicly, you may be prohibited from moving to a new agency and then sharing this information with that agency. If you breach your original agency’s confidentiality provisions, it may sue for damages.
Confidentiality clauses are legally enforceable as long as they do not conflict with particular laws or public policy. For instance, an agency cannot enforce a contract that says you are prohibited from reporting reasonable suspicions of child abuse. If you are a legally mandated reporter, the agency contract cannot restrict your ability to report such suspicions. Similarly, if an agency tries to limit your right to free speech, a court may find this provision unenforceable.
Noncompete Clauses
Noncompete clauses are contractual provisions prohibiting employees from working for competing agencies within a particular geographic region. Your current agency may not want you to take the knowledge and skills that you developed with them to provide similar services for another agency or as a private practitioner. Typically, noncompete clauses were limited to a particular period of time, for instance, stating that you may not provide specified services for six months to two years after termination with your original employer. Although noncompete clauses were traditionally limited to particular geographic areas, some noncompete clauses also restricted your practice regardless of where you were located. Given that services can be provided across vast distances through videoconferencing and other communication technology, agencies may have an interest in limiting your ability to compete with them regardless of where you are physically located.
In April 2024, the Federal Trade Commission (FTC) issued a rule banning noncompete clauses for most employment situations. The rationale behind this ban was to protect the freedom of workers to move between jobs, enhancing worker mobility, promoting innovation, and supporting a free marketplace including new business formation. Noncompete clauses may also suppress wages by making it difficult for workers to move from one job to a better paying job (FTC, 2024). Under this FTC ban, noncompete clauses are generally unenforceable.
However, the FTC ban is relatively new and its future is uncertain. There are already court cases challenging its constitutionality (e.g., Foley & Lardner, 2024). In Ryan, LLC. v Federal Trade Commission (2024), the court found that the FTC acted beyond its statutory authority in creating the ban on noncompete clauses, and that the ban is “arbitrary and capricious.” Accordingly, the court declared that the ban is unenforceable. The Ryan decision is currently under appeal, so the ban will be unenforceable unless and until the appellate court rules otherwise (please see https://www.courtlistener.com/docket/68463428/ryan-llc-v-federal-trade-commission/?page=2 for updates on this case).
If you have questions about the enforceability of a particular noncompete clause or the status of the FTC ban, you may need to consult an attorney for advice.
The Ethics of Noncompete Clauses
Given the uncertainty over the future of the FTC’s ban, it is important to consider the ethics of noncompete clauses from a social work perspective. Historically, many social agencies have not included noncompete clauses in their employment contracts. The primary mandate of social agencies is to provide individuals, families, groups, or communities with particular services—not to earn profits. Noncompete clauses align more with the mandates of for-profit businesses seeking to safeguard their intellectual property, research and development, and profitability. Restricting a social worker’s ability to practice may violate a social worker’s ethical responsibility to make services accessible to clients. Restricting a social worker’s ability to practice may conflict with their duty to ensure clients have access to needed services. Such restrictions may be particularly problematic if the social worker has been providing essential services to a vulnerable group, especially in areas with insufficient numbers of service providers.
While certain aspects of noncompete clauses may conflict with social work ethics, others may align with them. Standard 1.06 of the NASW Code of Ethics, for instance, suggests that social workers should avoid dual relationships and should not use their relationships with clients to advance personal interests. Suppose a social worker quits a job and takes the agency’s client list to solicit clients for their new agency or private practice. The worker is not only violating the terms of a noncompete clause, but also Standard 1.06. Asking clients to leave their current agency may place them in an uncomfortable situation, perhaps wanting to stay with the current agency but not wanting to disappoint their current social worker. Social workers should not invite former clients to move with them to a new agency unless the agency provides explicit consent for the social worker to do so.
Consider an agency that decides it will no longer provide services for people with eating disorders. The agency may allow a social worker to speak with clients with eating disorders about the possibility of moving to the worker’s new agency. The social worker should not pressure clients to move with them, but rather, help clients explore various options now that the original agency has stopped providing such services.
Legal Challenges
If courts ultimately determine that the FTC ban is invalid, you may still be able to challenge a particular noncompete clause because it is too restrictive or unreasonable. Challenging a noncompete clause in court can be expensive, time consuming, and stressful. If you want to leave an agency and have concerns about the enforcement of a noncompete clause, it may be more productive to negotiate collaboratively with your employer rather than contest the clause in court. For instance, an employer may be willing to waive a noncompete clause if you agree to certain restrictions (e.g., not reaching out to existing clients or limiting your areas of practice for a period of time). You may also develop a mutually beneficial agreement in which you and your original agency refer clients to one another and support each other’s missions.
Key Takeaways
The ethical responsibilities of professional social workers often align with their contractual obligations to their agencies. Still, it is important for social workers to understand their agency’s expectations and whether there might be potential conflicts between agency requirements and professional ethical responsibilities. Balancing professional integrity, legal obligations, and agency policies is essential. In some instances, you may decide not to work for an agency where there are significant conflicts between your ethical duties and the terms of the employment contract and agency policies.
If an employment contract or agency policy conflicts with your ethical duties, you may bring this conflict to the attention of your agency. You could discuss ways to bridge the conflict and ensure that you and the agency are providing services in an ethically responsible manner (NASW, Standard 3.09[c].). If you need assistance concerning how to broach such conflicts, consider reaching out for help with your clinical supervisor, your professional mentor, a legal advisor, an ethics consultant, or a conflict resolution specialist such as a mediator.
Ideally, both you and your prospective employer will share mutual interests in promoting social work values such as respect, integrity, competence, and access to services for people in need.
References
Federal Trade Commission (FTC). (2024). FTC announces rule banning noncompetes. https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
Foley & Lardner LLC. (2024). Too little, too late — The death of the Federal Trade commission noncompete rule may be near. https://www.foley.com/insights/publications/2024/07/federal-trade-commission-noncompete-rule
National Association of Social Workers [NASW]. (2021). Code of ethics. https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English
Ryan, LLC. v Federal Trade Commission (FTC). (2024) 24-cv-986, D.I. 11 at 26 (N.D. Tex.).
Allan Barsky, JD, MSW, PhD, is Professor of Social Work at Florida Atlantic University and author of Social Work Values and Ethics (Oxford University Press).
The views expressed in this article do not necessarily represent the views of any of the organizations to which the author is affiliated, or the views of The New Social Worker magazine or White Hat Communications.