The Dentist's Network #50


	Marketing Taglines Associate Agreements Anti-Discrimination Law

Joel Harris, President
ADA Intelligent Dental
Marketing, Inc.
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Don't Forget the Tagline!

I love great logos. I also appreciate great taglines. And when you combine a great logo with a great tagline, you have created a powerful marketing combo that can communicate a lot in a very small space. Because you can use such a combo on every piece of communication about your business, you have the opportunity to imprint the message into the brains of your prospects without spending a lot of money.

Unfortunately, when it comes to dental marketing, combining an effective tagline or slogan with a logo is usually overlooked. (Even though Webster's Dictionary doesn't agree, the words “tagline” and “slogan” are pretty much interchangeable. I tend to use the word tagline.)

Now let's cut to the chase:
An effective dental tagline sells the benefits of your practice instead of its features. “Family and Cosmetic Dentistry” is not a tagline; don't merely describe your services.

I cringe when I see a dental tagline that is just bragging. Claiming to be the greatest dentist in the world isn't a statement of benefit. Consumers don't care that you are #1 in any category. Consumers don't care that you are the best or most or first. Consumers respond to messages about their needs and solving their problems. It's also a mistake to be cute simply for cuteness's sake. Personally, I think this flawed approach to creating a tagline has its roots in the advertising approach of many of the world's most recognized companies. Dentists see the way lots of big companies have catchy and fun taglines, and they follow in their footsteps with such taglines for their own practices.

The funny thing is that marketing research shows that consumers don't necessarily purchase any more products or services because of a catchy tagline. Some companies may get additional recognition, but they don't necessarily generate additional customers or sales. Meanwhile, the entire point of your dental marketing is to get new patients.

Everything about your dental marketing should increase the response you're aiming for (i.e. more new dental patients, more referrals, etc.). So how do you do that with your tagline, if you're using one?

Well, for one, don't try to create a tagline that people will remember. Instead, develop a tagline for your practice that conveys a big promise and desired benefit to your target market. Be crystal clear about what patients get from your practice that they don't get anywhere else.

There's an art to developing a great practice name and tagline. Begin by writing down a few sentences that describe the core benefits your practice provides. Break down those sentences to capture the bare essentials.

Here are some creativity tools to help you create a great tagline:

Use a two-fold message with a twist: “Common sense. Uncommon results.”
Show your unique commitment: “We try harder.”
Address a specific need: “For women whose eyes are older than they are.”
Explain product superiority: “Takes a licking and keeps on ticking.”
Be abstract but client-centered: “After all, it is your information.”
Evoke a benefit in a fresh way: “Let your fingers do the walking.”
Use an emotional call to action: “Reach out and touch someone.”
Use a call to action: “Put a tiger in your tank.”
Suggest the cost of not using your product: “Because so much is riding on your tires.”
Combine your service with your client: “You and Betty Crocker can bake someone happy.”
Describe your service and its #1 benefit in two words: “Advertising pays.”
Make a compelling promise: “The world on time.”Say it staccato: “Soothes. Cleanses. Refreshes.”

If a tagline is executed well, it becomes part of the culture of the practice. When new patients call or ask about your dental services, answer with a conversational version of your tagline. And never forget to live by the benefits stated in your tagline. In a sense, it becomes your pint-sized mission statement and can be used to help your team stay focused on the values that patients find important.

Joel Harris is CEO and Co-Founder of Intelligent Dental Marketing, one of the nation's leading dental marketing companies focused exclusively on dental practices. Intelligent Dental Marketing provides powerful marketing tools to help dentists grow their patient base, increase their profit and improve their image. Joel can be reached directly at 877.942.8855.

Interested in speaking to Joel about your marketing concerns? Email him at joel@thedentistsnetwork.net.

Interested in having Joel speak to your dental society or study club? Click here

Thomas L. Snyder, DMD, MBA
Managing Partner
The Snyder Group, LLC
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Is Your Associate Agreement Complete?

We are constantly reviewing associate agreements and often find two key components lacking: unrealistic terms for a restrictive covenant and the solicitation of office personnel by a departing associate.

Restrictive Covenants
In states that allow a restrictive covenant, the covenant must be both “reasonable” for enforcement, in geographic restriction as well as duration. We often see covenants in densely populated areas that extend 15 to 20 miles! In most jurisdictions, that restriction may well run into legal hurdles, if challenged by a former associate. Being reasonable in protecting your practice from a former associate should be your goal, and establishing a fair covenant will increase your odds of enforceability.

One way to establish your covenant area is to determine where 80% of your patient base resides. To establish a fair geographic restriction we suggest that you prepare a zip code analysis report to determine how far your patients are traveling. You may be surprised at the results! Once the report is run, calculate the distance wherein 80% of your patients travel. You can add an additional mile or two to incorporate a few more patients who may comprise a portion of the remaining 20%. This is a fair way to calculate a geographic restriction.

Another area to be considered is the covenant duration. Typical covenants for employees last one to two years. Any time frame beyond this range can be considered excessive, so be prudent in citing your time frame. Conversely, if you were to sell your practice, don't be surprised if the Purchaser restricts you for five years from practicing in the covenant area. These post-sale covenants are often enforceable since you have sold your business and the purchaser has to be protected from interference. There is a big difference in covenant enforcement between being an employee and selling your practice.

Patient Solicitation
Patient solicitation is always a difficult offense to track. If patients are directly solicited by a departing associate, oftentimes they will be reluctant to call your office and request their records to be sent. Many times, practitioners learn of a solicited patient when they do not respond to recare notices or fail to show for a future appointment. Determining the economic loss of a solicited patient is difficult to quantify. One approach to take is dividing the number of active patients by your most recent year's revenue. The result is average revenue per patient. However, this calculation is normally an underestimation for “active” patients as they more than likely participate on a regular basis in your recall program. In effect, their loss is an annuity of recare revenue over a number of years. Whatever damages you list in an employment agreement, it should be justified economically.

Additionally, associates who leave to either establish their own practice or join another practice outside of your covenant area are normally allowed to advertise in the community newspapers. However, they are not allowed to utilize your name in any future advertisements, as that would be considered direct solicitation.

Staff Solicitation
Most employment agreements that we have reviewed contain patient solicitation language but do not address staff solicitation. Loss of a key staff member can be a very critical, especially in a smaller practice. Not only are you losing a highly trained individual, but you are losing a staff member who has developed goodwill. This is particularly true with dental hygienists who may have worked with your patients for many, many years. If your associate were able to recruit one of your hygienists (or, for that matter, any key staff members), you certainly would suffer economically. We therefore specify certain damages for solicited staff in our employment agreement templates. Liquidated damages are not considered a penalty, but rather a genuine estimate of damages that are caused by a certain event—in this case, the loss of your employee. Recruiting new staff can cost you thousands of dollars, notwithstanding the cost of training new personnel. We use a rule of thumb in computing our liquidated damages at three times the monthly salary of a full- or part-time solicited employee. This damage payment will not fully compensate you for the loss of the good employee, but at least puts the associate on notice that if he or she decides to recruit your staff, a significant penalty will result.

Enforcing penalties for restrictive covenants or solicitation violations is not easy to deal with, but by having economic damages spelled out in your agreement you can increase the odds of receiving some compensation. Make sure to confer with your attorney to craft these important clauses in your employment agreement.

Dr. Thomas L. Snyder is Managing Partner of The Snyder Group, LLC, a nationwide practice transition and financial management consulting firm. With more than 75 years of experience in the field, The Snyder Group can provide you a full range of services relating to practice transition matters and retirement planning. They can be reached directly at 1-800-988-5674.

If you would like additional help, email Dr. Snyder at drsnyder@thedentistsnetwork.net.

Interested in having Dr. Snyder speak to your dental society or study club? Click Here

Michael Moore, Esq.
Director McKenzie
HR Solutions
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Major Developments In Anti-Discrimination Law

We address here two pieces of legislation in Congress that presage major new responsibilities for employers: the Americans with Disabilities Act Restoration Act and the Employment Non-Discrimination Act (ENDA).

As we reported several months ago, both the House and Senate this year saw the introduction of legislation intended to overturn a number of United States Supreme Court decisions that virtually eviscerated the Americans with Disabilities Act. Although federal anti-discrimination law applies to employers of 15 or more employees, almost every employer will be affected by any federal change, because the states will fall in line with the new federal legislation.

Last week, with stunning speed, a compromise bill—H.R. 3195, which retains the most dramatic provisions—blew through the House committees and then the House . The Senate will now take up the bill. Spokespersons for the coalition of groups that joined to drive the bill say they expect it to pass the Senate and become law by the end of the year.

The bill's four key provisions:

It rebukes the Supreme Court's reasoning in key cases decided in the 1990s and directs the courts to broaden employee protections.
It requires courts to assess disability without regard to medications or assistive devices, such as prostheses, etc.
It requires courts to judge permanent medical conditions with episodic effects—such as epilepsy, MS, etc.—as if the condition's impact is full-blown, even though it might be in remission when the employer takes adverse action.
It orders courts to reject a demanding standard for assessing whether or not a condition substantially impacts the employee's daily life activities.

From a practical standpoint, trial courts now must, and will, give great deference to the evidence of disability and discrimination.

What does this mean for your practice?
First, in the absence of a review of your human relations policies and procedures, you may be exposed to disability claims, which can cost you up to $75,000.00 to defend even if you win. The review should address particularly your hiring policies—from the advertising you use, to the questions you may not ask in interviewing.

The best defense to any discrimination claim is a thoroughly documented, consistently applied policy of corrective action. As long as you can produce the documents that show any adverse action was taken for legitimate business needs and did not single out any individual, you are well along in avoiding a legal claim.

As we have discussed in other writings, a major difference between the ADA and other laws is that, in addition to prohibiting discrimination, it requires “reasonable accommodation” for any employee who notifies you of a condition that constitutes a disability. “Reasonable accommodation” is admittedly vague and thus subject to a range of interpretations—many of which will not be favorable to employers. Nonetheless, there are limits on what you must do. The question of accommodation is a cost-benefit analysis. If the cost is too great, accommodation need not be offered. If the only accommodation is one that allows the employee not to do essential functions of a position, you need not offer that accommodation. If the accommodation would displace other workers or cause substantial changes in the office operations that need not be offered.

However, given the attention that lawyers for employees will be paying this area, you should seek advice and assistance whenever you are confronted with a request for accommodation.

Second, be aware that the law does specifically establish the length of a condition that constitutes a disability. Impairment with an actual or expected duration of six months or less categorically cannot be a disability covered by the law. Hence, any condition you know, or reasonably believe, to be temporary may not be the basis of a legal claim. You may discipline or terminate such an employee without concern of a claim.

The second piece of legislation that is moving rapidly through Congress is the Employment Non-Discrimination Act, the ENDA. The bill is a supplement to Title VII of the Civil Rights Act of 1964—the law that prohibits discrimination on the basis of gender, race, national origin or religion. The new bill includes sexual orientation as a class of protected individuals.

So although the framework of the law has been in place for decades, the addition of this new class of individuals protected against discrimination and harassment is significant. Up to this time, the laws prohibiting discrimination against gay and lesbian workers have been a patchwork of state and local ordinances. When the ENDA becomes law, there will be swift action by all states to outlaw discrimination in most workplaces. Hence, virtually every dental practice will be affected.

The passage will require no major changes in those offices that have written anti-discrimination and corrective action policies. By hewing to the policies consistently, the practice need have little concern that a claim will be made—or if made, be successful.

However, this should be a wake-up call for those offices that have neglected the area of employment relations. The reason is simple. In my practice as a plaintiff's lawyer, I have been consulted many times by gay and lesbian employees who were clearly being subjected to hostile work environments, both by managers and co-workers. There was nothing the law could do for them, but it became apparent that these folks were extremely sensitive to slights and indignities. Much of the sensitivity I found justified.

Given this history of discrimination, and the heightened sensitivity to it, I predict that as soon as the laws pass, there will be a flood of claims against employers. Because many employers will be ignorant of the new law until it is too late to remedy the situation, at least for the first couple years, many will be exposed to substantial liability.

For this reason, it would be wise for any practitioner to audit his or her policies and office procedures and make sure that there is no possibility of exposure.

Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie's HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.

Click here to hear Mike present “7 Elements of an Effective Employment Policy.”

Email Mike at mike@thedentistsnetwork.net.

Interested in having Mike speak to your dental society or study club? Click here