Since the Covid-19 pandemic started, healthcare professionals across the nation have been ringing the alarm about adverse working conditions, understaffing, and personal safety issues. In fact, according to Morning Consult, nearly 1 in 5 health care workers have quit their job during the pandemic. Resigning from a job that causes dissatisfaction is an obvious option for an unhappy at-will employee. Therefore, it should not be surprising that healthcare professionals across the country expressed outrage when the option of resignation was seemingly threatened in the Wisconsin “ThedaCare Seven” lawsuit.
On January 20, ThedaCare filed a lawsuit that temporarily prevented seven of its employees from starting a new job. In short, ThedaCare sued its competitor, Ascension, to temporarily block 7 of its employees from starting a new job at Ascension. The seven employees include 4 radiology technicians (RT) and 3 registered nurses (RN). These 7 employees were members of ThedaCare’s 11-person interventional radiology and cardiovascular team (the “IRC team”). In the complaint, ThedaCare argues that it had “prospective contractual relationships” with the 7 at-will employees, and Ascension interfered with those contracts by arranging for the 7 employees to simultaneously resign.
ThedaCare asked the court to grant a temporary injunction to avoid “significant impacts” to its ability to provide critical services. Importantly, ThedaCare also asked the court to instruct Ascension to make one RT and one RN from the departing team available per day or cease hiring the seven employees until it has enough time to hire adequate replacement staff. On January 21, the court granted ThedaCare’s request, and healthcare workers across the nation reacted. In general, healthcare workers expressed concern about ThedaCare’s motives, the consequences of the injunction, and the example that this lawsuit may set for employers across the nation.
Healthcare professionals expressed concern that ThedaCare’s motive was to circumvent the “at-will rights” of the 7 employees. Healthcare professionals also expressed concern about the consequences of the temporary injunction. The temporary injunction gave Ascension a choice – make 1 RN and 1 RT available to ThedaCare or cease hiring the seven employees altogether. This affectively meant that some of the 7 healthcare workers would either be forced to work at ThedaCare or prevented from starting their new job on January 24 as scheduled. Many healthcare professionals were outraged that the court issued an order that affectively stopped the 7 employees from starting a new job and could potentially force some of them to work at a job that they no longer wanted to work at.
Even though ThedaCare sued Ascension, the 7 employees were seemingly caught in the crossfire. Healthcare professionals expressed fear that employers across the nation may file similar lawsuits in response to a large efflux of employees who quit their job to work for a competitor. The reaction of the healthcare community to the ThedaCare lawsuit highlights broader concerns that they face as they grapple with working during a pandemic. Like all employees, healthcare professionals want to feel like they can quit their jobs for better opportunities without facing negative consequences. They want their employers to develop solutions to improve their working conditions and wages – rather than filing lawsuits that could infringe upon their rights. And healthcare professionals certainly do not want to be treated as a disposable, interchangeable commodity with no rights.
Healthcare workers who are concerned about this lawsuit should encourage their national and state professional organizations to file advocacy documents on their behalf. Healthcare workers should also become familiar with federal and state antitrust laws, which seek to protect workers against unlawful wage-fixing, no-poach agreements, anticompetitive non-compete agreements, and the unlawful exchange of competitively sensitive employee information, including salary, wages, benefits, and compensation data.
The U.S. DOJ’s Antitrust Division and Federal Trade Commission jointly released a statement on April 13, 2020 announcing that they will “protect competition for workers on the frontlines” of the Covid-19 response in the U.S. by enforcing the antitrust laws. In particular, the joint statement reads the “Antitrust Division will not tolerate companies and individuals who use Covid-19 to harm competition that cheats payroll and non-payroll workers …This includes doctors, nurses, first responders.” The Joint Statement concludes by asking readers to email the divisions Citizen Complaint Center if they have information concerning harm to competition in the labor market at firstname.lastname@example.org and the bureau’s complaint center at email@example.com
On January 24, the Wisconsin court vacated the temporary injunction, and ThedaCare agreed to reimburse the 7 employees at higher wages for the work they missed on January 24. The 7 healthcare workers were allowed to start their new job at Ascension on January 25. ThedaCare’s tortious interference with contract claim against Ascension will continue to be litigated. Healthcare professionals across the nation have a right to be concerned about this lawsuit and its potential impacts.
UPDATE: ThedaCare dropped their lawsuit against Ascension in the late afternoon of January 28. Dropping this lawsuit seems to validate healthcare professionals’ concerns that the lawsuit’s motive was to prevent the 7 employees from working for a competitor while forcing some of them to work for ThedaCare.