“Ownership” of Clients

If you’re an employer of massage therapists, or you are a massage therapist who’s is employed by someone else, who “owns” the client? The short answer is, no one. People have the right to go where they choose, and to patronize whatever massage therapist they choose to patronize. The long answer is a little more complicated.

A friend of mine who employs other therapists in her practice was upset last week when an employee gave clients a reminder call from her own cell phone on her day off, instead of calling them from the office. The issues there were ownership of the client’s information and a concern about HIPAA violations…and two clients actually called the office to ask why they were being called from the therapist’s cell phone, since previous calls had always come from her office.  She not only fired the employee, she also went to the police about data theft and filed an ethics complaint with the NCBTMB. The business is in an unregulated state, or she would have filed an ethics complaint with the state board, as well. She had plainly stated in her policies and procedures manual that taking the phone numbers and or other information of clients was prohibited, and discusses that fact with each new person she hires. The therapist had done more than just take the phone numbers; she had also downloaded all the treatment notes, etc–including those sessions performed by someone else that she was not involved in. The owner was perfectly within her rights to fire the employee and take the other actions, based on that policy.

I run things differently in my office. Nearly all of the half-dozen therapists who work at my clinic as independent contractors have the phone numbers of their regular clients in their cell phones (remember, my friend’s staff members are employees). It’s our procedure to ask clients if they would like a reminder call or a text message, and it’s my own desire for the therapists to make those calls personally instead of depending on me to do it. I’m the office manager and chief bottle-washer at my place of business, and in addition to the therapists, I also have an acupuncturist, a chiropractor, a clinical herbalist, and an aesthetic nurse there. I make the reminder calls for the chiropractor. I expect everyone else to make their own.

Some people would say that I am making it easy for them to steal clients, in the event they were to leave my practice and go elsewhere. That’s true, but I choose not to look at it that way.  First and foremost, my staff is what has made my business successful. I’m just the ringleader. Everyone there genuinely likes, supports, and refers to each other; it’s a family atmosphere. Staff turnover has happened so rarely that in 8.5 years of owning my business, I can count on one hand the number of people who have ever left. The few times it has happened, I can only think of one of those occasions when a few clients left my business to follow the departed therapist. I don’t begrudge them. They were attached to their therapist, and that’s okay. On the few occasions someone has left, I willingly gave their contact information to clients who called after their departure, if the client didn’t want to see someone else. It wouldn’t endear me any to the public if I was nasty about it. One of my former staff members opened her business less than a mile away from mine. I’ve given her number to quite a few people. It hasn’t hurt my business.

Some employers in our profession require their staff members to sign non-compete agreements, which usually state something along the lines that the person will not practice massage for X period of time within X miles of proximity. Here’s the reality: non-competes aren’t worth the paper they’re written on, according to Dale Atkinson, the Executive Director of the Federation of Associations and Regulatory Boards, who also happens to be the attorney for the Federation of State Massage Therapy Boards. Atkinson says if you are the VP at Massage Envy, privy to proprietary company secrets, in that case a non-compete could stick, but as far as a massage therapist in the average privately-owned business, it is nothing more than an attempt to restrict free enterprise, and will never hold up in court. Of course, an owner with sour grapes can press the issue and cost the therapist time and money in fighting it, but ultimately, the chances of it being enforced are slim to none.

Client information is actually the property of the client. If any client walks in the door and asks for their file to take to their new therapist, you’re obligated to hand it over. You may (and should) keep a copy for yourself, since most state boards have a requirement about what length of time you’re obligated to keep records. You can charge them a copying fee, if you’re so inclined.

My friend was being rightly cautious about HIPAA violations. Since the guilty therapist downloaded client information onto her smart phone, if she were to lose her phone and anyone finding it could access client information, that wouldn’t be a good thing. The burden is on the owner of any business to safeguard client information. Unfortunately, HIPAA has not quite caught up to technology, and some of their wording in regards to the protection of and responsibility for electronic data is vaguely worded. The police department was actually having a hard time deciding what article they could charge the therapist under, because it isn’t very clear on the HIPAA website.  They have a statement on their site that they are “still developing rules.”

When you have been employed somewhere, and you take a different job or go out on your own, it is perfectly legal to take out some advertisements in the paper that say “Laura Allen, Massage Therapist, formerly of THERA-SSAGE, has opened her own practice at Wellness Way in Oxford.”  In fact, it’s a press release, if you send one in to the business editor.

The bottom line is, there are different strokes for different folks. If you are an employer, you have the right to set your own rules. One caveat–it is not enough for you to just tell people on the day you hire them what all your policies are. You need to have a manual, and/or an employment/IC contract, that spells out your policies and procedures in clear terms. And if you’re out there seeking a job, or you already have one, you are obligated to abide by the policies your employer has set forth. If you want to do your own thing, then open your own business. When you agree to go to work for someone else, you agree to abide by their rules, and that includes not stealing client information. It can cost you a lawsuit, and might cost you your license as well, if an employer files an ethics complaint against you.

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