That's what I thought as well.
A Tale Of Two Hospitals
- Thread starter ShadowArxxy
- Start date
That's what I thought as well.
The staff in question should stand up in court and tell the judge that they refuse to let him enslave them and that they won't be working at the hospital. Then demand an immediate appeal, on the grounds that the judge is ordering at-will employees to work for a private entity when they have no desire to do so. Slavery being illegal and all.
Arguably, the court could prevent the second hospital from hiring those people but even that seems really shaky.
Seriously though, stand up in public before the news media and accuse both the hospital and the Judge, by name, of promoting slavery. Even better if any of the technicians in question are minorities. I mean legally, the judges position is indefensible.
If they were government employees or had contracts with relevant provisions then it would be a different matter; but absent either of those, nope.
Arguably, the court could prevent the second hospital from hiring those people but even that seems really shaky.
Seriously though, stand up in public before the news media and accuse both the hospital and the Judge, by name, of promoting slavery. Even better if any of the technicians in question are minorities. I mean legally, the judges position is indefensible.
If they were government employees or had contracts with relevant provisions then it would be a different matter; but absent either of those, nope.
That's exactly what the court actually did, though -- the injunction doesn't require the staff members to work for ThedaCare, it simply bars Ascension from onboarding them until the court takes further action on the case on Monday.
A further thought: given that ThedaCare's version of events asserts that Ascension actively recruited the radiology staffers and Ascension's rebuttal asserts that the employees found open job listings on their own, it's possible that there's a non-solicitation agreement between the two healthcare companies. Such an agreement would prohibit either company from poaching each other's employees and/or clients; however, it's only binding on *the companies* and in no way restricts employees from moving on their own on an at-will basis or when an employment contract runs its course.
If there was a non-solicit agreement, the burden of proof would be on ThedaCare to *prove* that Ascension actively poached the employees in question, and even then, the only remedy they would be entitled to is fines. They can't force the employees to come back.
If there was a non-solicit agreement, the burden of proof would be on ThedaCare to *prove* that Ascension actively poached the employees in question, and even then, the only remedy they would be entitled to is fines. They can't force the employees to come back.
Such an agreement would generally be illegal, IIRC. I believe a bunch of tech companies got successfully sued for it. Basically making a cartel on the purchase side is just as illegal as a cartel on the selling side.
And I don't think it would be tortious interference because of the at-will employing at a minimum.
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Non-solicitation and non-compete agreements are legally limited and restricted, but not completely illegal.
There was a case about this kind of thing just last year, where the precedent set was that a non-compete agreement as part of a larger business collaboration deal can be legally valid where a standalone non-compete agreement is not. Essentially, if you're Company A and I'm Company B and we agree to a mutual non-solicitation agreement and just that, that is not valid and we're both guilty of anti-competitive practices. But if we agree to a mutual non-solicitation agreement as part of a business deal between us, where the idea is, "Because of the work we're agreeing to do together, you'll have direct contact with my employees and vice versa, so we both agree that as part of the collaboration deal, we're not going to take advantage of that to try to poach each other's stars."
I'm not saying there definitely is a non-solicitation agreement between the two companies. I'm saying that the way they each phrased their public statements might imply one, and that's one of the very few ways ThedaCare could possibly have any case at all.
Edit: And yes, non-solicits can exist in at-will employment conditions. For example, it's pretty much universal for temp companies to put a non-solicit clause on the contracts they make with property management companies, because if they don't have such a clause, it's very common for a company that acquires an excellent temp employee to poach them as a direct hire.
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At today's full hearing, the judge ruled that ThedaCare's arguments for an injunction were legally insufficient to even be considered, and further noted that he only granted the temporary injunction over the weekend because state law requires him to give "substantial weight" to any claimed impacts on public safety.
The case as a whole will continue to move forward, but in the meantime the staff members are starting their new positions at Ascension, and ThedaCare will also compensate them for lost wages. It is not clear whether ThedaCare is going so voluntarily in order to minimize bad PR, or whether it was ordered to do so by the judge.
The case as a whole will continue to move forward, but in the meantime the staff members are starting their new positions at Ascension, and ThedaCare will also compensate them for lost wages. It is not clear whether ThedaCare is going so voluntarily in order to minimize bad PR, or whether it was ordered to do so by the judge.
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