In a fascinating legal battle highlighting the strain the Covid-19 pandemic has placed on the American workforce over the past two years (and specifically health care facilities), Thedacare filed a lawsuit against Ascension seeking a temporary and permanent injunction enjoining Ascension from hiring seven (7) members of Thedacare’s interventional radiology and cardiovascular team. In the alternative, Thedacare sought an injunction forcing these seven employees to staff Thedacare’s Neenah facility until replacements could be hired.
At the times of separation (which varied from employee to employee), all seven of the employees were “at-will” employees and not subject to any alleged non-compete (or similar) agreements. The only potential claim brought by Thedacare was a strained argument that Ascension tortiously interfered with prospective contractual relationships between Thedacare and the employees. After initially granting Thedacare’s motion for a temporary restraining order on Friday, January 21, 2022, Judge Mark McGinnis held a hearing on Monday, January 24, 2022, and ultimately decided that Thedacare could not force the employees to work for it and lifted the temporary restraining order.
The background to this case emphasizes the strain currently placed on employers as they deal with depleted staffing resources. In summation, Ascension had a number of job openings, posted those openings, and offered overall superior compensation packages to those currently provided to the employees by Thedacare. It also appears that Thedacare was aware of the resignations of these staff members for weeks before they ultimately filed its suit and failed to properly staff to replace the departing employees.
Ascension summarized its position candidly in briefing, simply stating the adage, “[y]our failure to prepare is not my personal emergency” and analogizing Thedacare’s position with the boy who cried wolf. Given the “at-will” status of these seven employees it was unlikely that Thedacare’s suit would be meritorious and Judge McGinnis’ most recent decision reflects that reality.
America is facing depleted resources in the workforce and, as the basic principles of the employment “at-will” doctrine will not be changing any time soon, employers need to be cognizant of the current market trends impacting employee hiring and retention as well as the legal requirements and options associated with those trends.
If you have questions or concerns about your hiring or employee retention programs, please feel free to reach out to the experienced employment law attorneys at Crivello Carlson, S.C.