Court Rules Health Care Workers Can’t Switch Jobs Without Accommodations For Previous Employer; Overturns A Week Later

In an odd and worrying decision, a judge in Wisconsin ruled that seven workers who were recently hired away from one company could not start working for their new company unless their previous employer received some accommodations from them. The ruling was rescinded a week later after a hearing, but the original ruling still needs to be reported to ensure this doesn’t happen again.

Reason reported on the original ruling, which stemmed from a case out of Wisconsin, where seven health care workers at ThedaCare left their jobs to accept opportunities as rival health care company Ascension. Those seven employees made up the majority of ThedaCare’s 11-person team, so ThedaCare attempted to stop the former employees from legally taking a new job, something millions of Americans do every year. As Reason noted, the employees had no contractual obligation to stay at ThedaCare.

Last week, Outagamie County Circuit Court Judge Mark McGinnis ruled in favor of ThedaCare, providing a temporary restraining order that demanded Ascension – the new employer – “Make available to ThedaCare one invasive radiology technician and one registered nurse of the individuals resigning their employment with ThedaCare to join Ascension, with their support to include on-call responsibilities or…Cease the hiring of the individuals referenced until ThedaCare has hired adequate staff to replace the departing IRC team members.”

Reason reported that “Ascension did no active poaching of the employees; one freely applied, preferred the offer, and word spread among the others. It’s a choice they should of course be free to make.”

ThedaCare’s argument was that because it is the only Level II trauma and comprehensive stroke care center in the area, losing that amount of staff and the ability to provide 24/7 on call services would risk its accreditation and residents’ health.

Lynn Detterman, a senior vice president at ThedaCare, told local outlet WBAY “it just really in the spirit of our community is harmed by this potentially so we just want to work collectively to ensure that does not happen.” As Reason noted, Detterman was referring to the prevention of “American citizens from taking another job they prefer more.”

Ascension released its own statement on the matter: “Workforce shortages are one of the many stresses healthcare systems have faced during this pandemic. … Contrary to the allegations in the ThedaCare lawsuit, Ascension Wisconsin did not initiate the recruitment of the ThedaCare employees. Rather, the employees applied for open job postings. … It is Ascension Wisconsin’s understanding that ThedaCare had an opportunity but declined to make competitive counter offers to retain its former employees.”

As Reason reported, Judge McGinnis provided no legal reasoning or precedent for his original ruling that required at least two of the employees who left ThedaCare to continue working for their former employer for the foreseeable future.

On Monday, McGinnis rescinded that order, saying, “Based up on the testimony, the exhibits that have come in that ThedaCare has not satisfied its burden that it will likely suffer irreputable harm without an injunction.”

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