An Employer Cannot Sue its Competitor in Order to Retain Staff

Kollman & Saucier
Kollman & Saucier

“The great resignation,” the current term used to describe the mobility of employees in the COVID-era  workforce, is in full effect.  Employment is extremely competitive at the moment, and it seems employees are feeling more comfortable changing employers.  This can, of course, leave employers in dire circumstances when a group of employees all decide to quit at the same time.  Employers are increasingly turning to alternative methods to retain employees and seeking new bargaining chips in order to avoid suffering from a depleted workforce.

That is exactly what happened in Wisconsin, albeit in a poorly thought-out tactic.  The lawsuit, Thedacare, Inc. v. Ascenscion NE Wisconsin, Inc., Case No. 22-CV-000068, was filed in the Circuit Court of Outagamie County, Wisconsin last week.  There, a hospital was faced with the consequence of a group of specialized cardiology interventional radiology (IR) care nurses accepted jobs en masse to work at a competing hospital.  In a bizarre tactic, ThedaCare, Inc. on behalf of ThedaCare Regional Medical Center – Neenah, attempted to retain the staff members by suing its competitor Ascension NE Wisconsin, Inc. for inappropriately group-recruiting employees and sought an injunction to prevent those employees from working at the competitor. 

In its brief, ThedaCare argued that the extraordinary circumstances of COVID-19 call for “Ascension to either make available one invasive radiology technician and one registered nurse of the departing IR team members per day, or cease the hiring of the departing IR team members, until the time when ThedaCare has hired adequate staff to replace the departing IRC team members and maintain its level of service in support of public safety and health.”  Without such relief, ThedaCare argued that the community at large will suffer as a consequence of the hospital’s lack of staff, and that “ThedaCare’s ability to care for trauma and stroke patients will be hindered until it can find staff to replace those that departed.”  ThedaCare’s full brief can be found here

Ascension responded in expected fashion, arguing that ThedaCare is responsible for its own staffing and employee satisfaction in order to provide adequate patient care.  Furthermore, Ascension pointed out that ThedaCare’s “emergency” was of its own doing; underpaying essential workers and refusing to extend counter offers to the departing employees when given an opportunity to do so.  In summary, Ascension argued that at-will employment is a two-way street and ThedaCare alone was responsible for the imminent crisis for which they sought an injunction.

A day after the suit was filed, on January 21, 2022, Outagamie County Circuit Court Judge Mark McGinnis initially granted the injunction and prevented the disputed employees from beginning work at Ascension on the following Monday.  A full hearing was then scheduled for Monday, January 24th.  After the hearing, Judge McGinnis was compelled by Ascension’s arguments and commented that ThedaCare held all the cards necessary to prevent the crisis, but simply failed to do so.  In the end, the employees can work for the employer they chose; they are after all, at-will employees.

At will employment means the engagement between employees and employers can be terminated at any time, without cause.  While legal consequences exist if the basis for termination violates certain laws, such as Title VII of the Civil Rights Act of 1964, ThedaCare was seeking a degree of control it simply does not have.  While there are circumstances where injunctive relief may be appropriate, it was not present here.

If your business is facing a situation where you are looking for legal advice on the consequences of losing staff, or you believe a non-compete or other contractual agreement has been breached by a current or former employee, please reach out to Kollman & Saucier so we can discuss avenues more likely for success if you were to pursue legal action.  

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