False Scarcity and Colonization: How NOn-Compete Clauses Disrups Medicine with Jamee Pineda

[The Decolonizing Medicine Podcast S01E11.  Original release date March 18, 2022.]

​Jamee Pineda  
Mabuhay! You are listening to The Decolonizing Medicine Podcast. I am Jamee Pineda, a queer non binary trans person and a practitioner of Hilot and Chinese medicine. My ancestry is mostly Tagalog and some Chinoy, but I was raised here on Turtle Island.

In this episode, I'm going to be discussing non compete clauses and why they replicate colonial values. So what is a non compete clause? A non compete clause is something that is very, very common in the medical industry, in the healthcare industry. And it's basically a clause that is in an employee's contract saying that they cannot take away any business from the place that they're working at.

Usually, this means that if you are working at a clinic, you cannot work outside of this clinic in a different clinic within a certain geographical radius. So for example, if I were to work at an acupuncture clinic, that wasn't my own, and I was employed there or working there as an independent contractor, that I couldn't then set up shop in within five miles of that clinic or work for someone else within five miles of that clinic, doing the same kinds of services. And generally, these types of clauses will have a - I'm not sure. I don't know if it's a statute of limitations, but usually there's a time limit for how active that clause is after someone quits their job. In addition to not being able to work within a certain geographical radius of the clinic that you're employed at, it usually includes some kind of restriction on the patients that you see.

If you are employed at Clinic A, for example, you would not be able to see any patients that saw you at Clinic A at Clinic B, at your own clinic or at someone else's clinic that you're working at. This is usually accompanied by some kind of fine. So if you are in violation of that agreement, and you do see someone from Clinic A at Clinic B, you usually are required to pay a certain amount of money to Clinic A for stealing their client, for working with with someone who is one of their accounts. And this might be a set fee, it might be, you know, a percentage of whatever fees you collected from the patients or combination of both.

This is something that I've had to sign as an acupuncturist on more than one occasion in order to work at someone else's clinic as an employee. But this isn't something that is restricted to just acupuncturists. This is really common across many different healthcare fields. I've heard of therapists doing this. I've I have friends who are midwives and nurse practitioners that have had to sign something like this to get employment at a hospital or a clinic. And I just I find this one, I find this very infuriating, and also very fascinating because there's this false scarcity, that at some point, like we might, as medical providers as healers run out of work, which I think is just ludicrous.

There is no shortage of people that need some kind of care or some kind of medical attention. As long as there are people, there's going to be a need for someone to help them with their care needs. So it's it's a really strange scarcity mindset. It is something that replicates a mentality of colonization with geography, where people can only practice within a certain territory with certain restrictions as if that clinic owns that area. And I find that very problematic. And it also is replicating the idea that people are nothing but profits, or nothing but assets, financial assets. A clinic owns a patient's account, regardless of who that patient might want to see as their practitioner.

If they go to a certain clinic, that clinic owns that account and anyone else, anyone within that clinic that decides to leave cannot then take that patient with them to their new practice unless there wasn't a non compete clause signed, or there were different agreements between the the original employer and the employee.

I hope that doesn't sound too confusing to folks. But I want to talk about more, I want to talk about how that has affected me and has affected patients that I've seen. So if you've listened to this podcast before, or if you followed my work in other platforms, like social media, or through my website, then you know that the people that I center the most in my work are queer and trans folks of color. And I also identify as being within that community. As someone who's a queer, trans person of color, it is really hard. And I'm speaking from my own personal experience and experiences I've heard from other people, but mostly my own personal experience, it is really hard to find healthcare practitioners that are affirming of our gender identity or sexual orientation, that have an analysis of different structural oppressions that might be affecting us, different challenges that we might have, different ways that medical trauma may have affected us especially as trans folks trying to access medical care. In my experience being a trans person trying to access medical care, that's really difficult.

I, whenever I go to any kind of health care provider, I am asking around, I'm checking reviews, I am you know, researching those practitioners as much as possible to safety plan to understand exactly what risk am I going to be take going to be taking to see this person to receive care? Are they going to misgender me? Are they going to use the name that I would like them to use? Are they going to ask me weird questions about the medical interventions I've had for gender affirming care. Or if if I'm not getting specific medical interventions for gender affirming care, like hormones or surgery, are they just going to be cool with me being a trans person, you know, like, going to the dentist, getting my teeth cleaned, going to a podiatrist, going to a chiropractor, things that are not gender specific, but you know, I still have to navigate if they're going to be inclusive and safe for folks of my experience.

That's what my experience has been like as a queer and trans person of color trying to access care.  My experience being a practitioner trying to give care is that in order to give care in a way that feels safer, there's a lot of relationship building that needs to happen. There's a lot of working against a history of medical trauma, that a lot of patients will bring with them into the treatment room. And so having this disruption of care where I can't, I can't continue to see someone because of clauses like this is really detrimental to groups that are historically excluded from having care that is affirming and that feels safer, that is trauma-informed, that is inclusive of them and their entire experience as a complex human being. And I find that so frustrating.

When I've left jobs that have required a non compete clause, I end up spending like a month, or you know several weeks or whatever, working with my trans patients, especially if they're trans patients of color, trying to set up safety plans and referring them to other practitioners that can provide care and build relationships in a way that feels good to them. And let me tell you, there's not a lot of practitioners in any modality that can share similar experiences with queer and trans folks of color.

This isn't about me, tooting my own horn and saying, I'm the greatest practitioner ever. But I do have lived experience and communal experience that informs the way that I practice that makes me a better practitioner, or a more informed practitioner rather. And, and it's really a disservice to have non compete clauses like this, because this creates another barrier for folks to try to access care, to try to build relationships with their providers, to overcome historical medical traumas.

In addition to creating more barriers for health care for folks, this also results in a loss of work for practitioners because they can't carry those relationships, those community connections, with them into their practices so easily unless they uproot themselves, move somewhere else, work somewhere far away where they have less connections. So it's, it's really a hit on someone's, I guess, social capital, I don't really like using that word, that's kind of a gross term. But it is an impact on someone's ability to use their relationships with people. And I think that really stunts the growth of folks out there who want to be self-employed, who will, for example, someone like me, who is autistic, who needs to have certain needs met in order to work in a way that's comfortable, that's not going to burn me out. That's one of the reasons that I am wanting to be fully self-employed, rather than working for other folks.

What can we do about this? What can we do as, as a community? Well, if you are a boss who owns a clinic and employs other folks, take out your non competes.  Take out the non compete clauses. They don't need to be there.  There's no need to be competitive around people's care, around people practicing their life's calling to do healing work in their communities.  There's never going to be a shortage of folks who need healing, that's just not going to happen. There's never going to be a shortage of that.

Are there barriers to, you know, filling your clinic and making sure that you have income, of course, but it is not, from a lack of healing work to be done. You know, like we can, we can talk about strengthening our relationships, for cross referrals, so that we are making sure that across our community, as practitioners, we are helping individuals connect with the practitioner that is the best fit for them. And that becomes like a mutually supportive relationship. We can talk about doing more education within our communities to help people understand the work that we do.  There's no need to feel like we need to hold on to people and own them as accounts.  They're not accounts, they're people. They're just people.

If you're a patient or client who is looking for care, you can ask your clinic to be transparent about whether or not they have non compete clauses. You know, most of my - pretty much all my patients had no idea that I had signed something like that in places that I've worked. Of course they wouldn't, that's not something that is really talked about, I think. Another thing that we can do is to challenge how individualism and capitalism culture shows up in wellness.  It's not all Eat, Pray, Love, you know, like it's still an industry, at least in the US. It's an industry. 

We need to be in dialogue with how capitalism interacts with that. Just because it's wellness doesn't mean it is anti capitalist.  Just because it is wellness doesn't mean it is anti colonial. Just because it is wellness doesn't mean the clinic's version of holistic includes the wellbeing of the collective, right?  What are we doing here? 

For me as a hilot practitioner, wellness, medicine was always about relationships to ourselves, to the creatures around us, to our relationships with people, to our environment, it is how we are connected. We don't have health in isolation from any of that. And I think that's how we need to think about wellness where what we really want to do is uplift our whole communities, not just ourselves.  We bring everyone with us.  The acupuncture fields in the US is very white, cis het dominant. And if we want to see more practitioner of color, more queer and trans practitioners thriving, we need to make it easier for folks to establish and maintain connections.

When someone controls your relationships, your ability to see other people and for them to see you do you know what that sounds like? That sounds like abuse, it sounds like manipulation. And just because this isn't happening, you know, within an intimate relationship doesn't mean that those dynamics of violence aren't still present. Even if folks don't intend for that to happen, structurally, that is what's happening. And that's something that we can change.

I know this isn't necessarily the most exciting topic to talk about. But I think it's really important because, you know, we're in our second year of this pandemic. People need a lot of help, people need a lot of healing. And we don't need to continue doing healthcare, doing medicine in the ways that we have in the past, that created more barriers for folks to either practice medicine or to receive it. I think that, you know, we have a lot of potential here to really shake things up a little bit and do things differently and do things better.

I've seen a lot of people in the last couple years become more invested in their healing, more invested in, you know, building different relationships with trauma and violence that they've experienced. And I want to keep that momentum going and support it for us as a collective community. I see more folks recognizing that they have a role in providing healing care, or healing support, to their communities and I think that we need to support that, too. It's amazing. I see more people getting involved in their traditional medicines in their ancestral practices, going deeper in their spirituality. And I think that's awesome. I think that we should support that in any way possible, including looking at the fine print in our contracts, in our paperwork, and making sure that actually reflects the growth that we want to see in folks accessing medicine.

I gotta be honest with you, recording this episode made me really anxious because, well, it's kind of risky to talk about it, it's kind of risky to talk about something that might piss off a lot of your work colleagues. But I think it's something that really deserves attention. And I'm glad that I'm talking about it, because I don't think that people talk about it very much, especially outside of, you know, outside of being fellow practitioners. So, so yeah, I'd love to hear people's thoughts on that. I think this is an ongoing conversation that needs to happen on how we can decolonize the practice of medicine.

So I have a few quick announcements to make. I am now set up at the Fruit Camp building in Baltimore. I love it. It's full of awesome queers and trans non binary folks doing art. As of March, I will be expanding my hours there to Mondays and Thursdays for in person treatments with acupuncture and bodywork. In April, I may be adding Sundays to my schedule, we'll see how busy I get. But that will be exciting if I can do that. And just as a heads up, I know that mask mandates are dropping for a lot of places in March. And I want you all to know, I am still keeping my mask on for in person meetings. I also still have many virtual offerings still available. And you can check that out at linktr.ee/jameepinedahealingarts.

One of those things is that I am running a Qi Gong course starting March 13. So this episode will come out after that starts, but I'm doing something a little bit different and accepting drop ins for this 5 Phase Qi Gong course, this QTBIPOC Five Phase Qi Gong course. So I will be letting folks who have already taken the course come in for drop-in so that they can get a little refresher on the material that they've already covered.

​I also will be coming out with the next issue of my Five Phase Chinese medicine zines. This one will be on the topic of wood, which is wood correlates with the season of spring. So if you haven't seen these zines, yet, they have a really beautiful collage on the front that I created to kind of capture the essence of each of the these phases or elements in Chinese medicine. And these zine covers can be used as altar pieces, they can be used as visual meditations, whatever you want. They're really dense. I really enjoyed creating them. And I hope that folks enjoy looking at them. So those are available on my online zine shop, again, linktr.ee/jameepinedahealingarts. I might consider doing some hard copies of these zines soon. I'm not really sure, but I would love to hear back from folks if that is something that they would like.

Community shout out for this episode goes to Decolonizing Fitness. Ilya is the owner of Decolonizing Fitness. They are a Black non binary trans masculine person who uses the pronouns he and they. Ilya is also a physical therapist assistant and a certified medical exercise specialist with over 13 years of rehabilitative and functional training experience. Their work centers racial, gender, and healing justice. Decolonizing Fitness is an incredible educational resource for coaches, trainers, studio owners and anyone who is interested in unlearning toxic fitness culture. Decolonizing Fitness as a practice is about providing a supportive environment to individuals who have historically not felt welcomed in fitness spaces. In example, Black people, people in larger bodies, people with disabilities, people with chronic pain, people over the age of 65, and people who are part of the LGBTQIA+ community. I highly, highly encourage you to check out Ilya's work at DecolonisingFitness.com and consider joining their Patreon. I'm a member of their Patreon and the content in there is amazing.

Salamat for listening to The Decolonizing Medicine Podcast. If you would like to support this work via Patreon or apply to be a guest on the show go to linktr.ee/JameePinedaHealingArts or Patreon.com/JameePinedaHealingArts. Music is by Amber OJeda, Hed Kandi, and Rocky Marciano. Big thanks to Laurenellen McCann, super sexy audio engineer extraordinaire and fiance.  Last, but not least, thank you to all our listeners and supporters out there. Ingat

Transcribed by https://otter.ai