[HN Gopher] Wisconsin Judge Prevents Nurses from Going to New Em...
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Wisconsin Judge Prevents Nurses from Going to New Employer
Author : lotsofpulp
Score : 91 points
Date : 2022-01-22 16:30 UTC (6 hours ago)
(HTM) web link (www.postcrescent.com)
(TXT) w3m dump (www.postcrescent.com)
| DamnYuppie wrote:
| Can a lawyer please weigh in on this? I don't believe there is
| anyway this should be legal. I don't have to wait for my employer
| to find my replacement before I leave. This isn't the feudal
| system where we peasants are tied to the lords land.
|
| Also if I were one of these employees I would simply not show up
| to the old employer, they can go f#ck themselves.
| syki wrote:
| I believe this ruling has to do with unfair competitive
| advantage. The employees are not prohibited from quitting or
| working elsewhere. The company attempting to hire the employees
| is prohibited from hiring the employees. It's a temporary
| measure until the court system works out the legality of
| everything.
|
| Imagine this scenario. There are two heart centers in a city.
| One of them decides to hire the doctors and nurses from the
| other heart center and does so and then massively increases
| prices. I'm not a lawyer but I think this sort of thing is not
| permitted (or desirable).
| oneoff786 wrote:
| That scenario doesn't seem very sustainable. The other heart
| center can hire new doctors, or pay more wages or whatever.
| Does it really need legislation?
| syki wrote:
| Suppose it's a trauma center that requires a certain level
| of staffing to be certified and that once said staffing
| can't be maintained the center loses certification.
| Competitor decides to poach employees en masse to initiate
| decertification. Suppose furthermore that certification is
| a lengthy process.
| oneoff786 wrote:
| That's nonsense though. A single trauma center can't
| hoard the entire labor supply of nurses.
|
| Raising healthcare prices due to market power for any
| reason is a problem regardless, and one that should be
| solved with regulation and market forces on the
| hospitals, not restricting nurses' freedoms.
| Ariarule wrote:
| The original article has so little information about what
| that case is actually about, it's stiking by its absence.
| There's discussion about motivations, but no real discussion
| about any relevant laws. It's like it's from a parallel
| universe where the entire concept of a legal system doesn't
| exist.
| lotsofpulp wrote:
| https://www.wbay.com/2022/01/20/thedacare-seeks-court-
| order-...
|
| This may provide some more information.
|
| I, and I suspect many others, are not aware there was any
| legal mechanism for a government in the US to prevent you
| from selling your labor to someone else, assuming there is
| no contract forbidding it.
| maxerickson wrote:
| The injunction is against the hiring hospital, which is a
| heavily regulated, licensed entity.
|
| I don't have a clue if there is a provision addressing
| group recruitment in those regulations, but it wouldn't
| be shocking.
|
| In general hospital regulation has lots of room for
| improvement...there's this idea that more hospitals will
| be more expensive and that it is good to move services to
| lower cost facilities. Neither of those make all that
| much sense. Competition and utilization are good things,
| not bad things.
| derekp7 wrote:
| Can the hiring hospital hire contractors through a
| contract agency? And if that contract agency happens to
| employ these nurses, would that violate this ruling?
| idontknowifican wrote:
| higher -> hire
| tedmiston wrote:
| Is it really "group recruitment" if each of the people
| applied independently vs being recruited or "poached"?
| [deleted]
| vsskanth wrote:
| > Imagine this scenario. There are two heart centers in a
| city. One of them decides to hire the doctors and nurses from
| the other heart center and does so and then massively
| increases prices. I'm not a lawyer but I think this sort of
| thing is not permitted (or desirable).
|
| Would be nice to know what state or federal law doesn't allow
| this type of behavior.
| BooneJS wrote:
| At-will employment. I don't see how anything outweighs that.
| Former employer didn't want to raise salaries nor did they want
| to lose people. They chose to go to court instead. The traitorous
| 7?
| msbarnett wrote:
| rdtwo wrote:
| Wow man that's crazy. I thought you had to at least go to prison
| to become a slave in this country but I guess you can become
| hospital property too if you work for one.
| oneoff786 wrote:
| After Slavery was outlawed in the US, southern states were quick
| to pass laws forbidding black people from changing employers
| until the growing season was over as a way to keep wages low and
| enact slavery lite.
|
| This is an important right to protect.
| rdtwo wrote:
| yorwba wrote:
| Found the case:
| https://wcca.wicourts.gov/caseDetail.html?caseNo=2022CV00006...
|
| Unfortunately, seems like none of the documents are available for
| download.
| pbourke wrote:
| Do the hospital executives of ThedaCare (the original employer)
| think this will improve their chances of recruiting anyone 2
| years from now? Irrespective of the insanity of the ruling, it's
| an abject failure of leadership to pursue this course in the
| first place.
| candiodari wrote:
| If they can threaten a judge into doing this, they can threaten
| government to get people to work for them. Once you do this,
| where does it stop?
| 882542F3884314B wrote:
| Interesting email from the ThedaCare CEO earlier this week.
|
| https://reddit.com/r/nursing/comments/s8tdki/shots_fired_our...
| vsskanth wrote:
| The assymetry of benefits granted by this injunction between the
| employer and employee is shocking here. The nurses are not
| allowed to work for the new employer but the current employer
| isn't required match compensation until the case is resolved.
|
| This is on top of Wisconsin being an at-will state and there
| being no formal employment contract in this case. I'm not even
| sure how the judge is legally able to do this considering the
| material harm to employees.
|
| There seems to be a lot of discussion on this at r/nursing
| [deleted]
| Natsu wrote:
| It seems a bit more limited than some are reporting:
|
| "On Friday, an Outagamie County judge ruled in favor of
| ThedaCare and issued this order:
|
| "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.""
|
| https://www.wbay.com/2022/01/20/thedacare-seeks-court-order-...
| itsdrewmiller wrote:
| It's also a temporary injunction that could be ended as soon
| as their Monday 10am next meeting. Still not really sure why
| they should be able to get an injunction at all though.
| bko wrote:
| > The nurses are not allowed to work for the new employer but
| the current employer isn't required match compensation until
| the case is resolved.
|
| Who cares about matching compensation? This is about the right
| to end employment and seek employment elsewhere. Right to
| provide a living for yourself and your family is a fundamental
| human right. It's appalling that this wasn't thrown out of
| court immediately. I'm not a fan of non-compete clauses, but at
| least there is a voluntary contractual component.
|
| In a broader sense, it's terrifying that this has even gotten
| so far and I fear it'll only get worse with more and more
| liberties being stripped away for [current emergency].
| sjansen wrote:
| They're not required to stay at the old employer, they're
| just not allowed to start at the new employer. Cold comfort
| for anyone with bills to pay, but they aren't being targeted
| by the decision, just the new employer. They're free to go
| find a third employer. (Which is probably how the judge
| sleeps at night after putting so many people in an impossible
| situation.)
| egberts1 wrote:
| toomuchtodo wrote:
| Will the judge file injunctions against the next healthcare
| system that offers roles to ThedaCare ex employees? Where
| does it end? This judicial action warrants federal
| intervention. Otherwise we arguably don't have at will,
| somewhat free market employment, but instead crony
| capitalism feudalism ("you will work for who we allow you
| to work for").
|
| Tangentially, ThedaCare's Level II Trauma accreditation
| (which hangs in the balance due to the departure of these
| workers [1]) should be re-evaluated.
|
| [1] https://www.wispolitics.com/2022/thedacare-seeks-to-
| protect-...
|
| Additional context:
|
| > Timothy Breister, an Appleton resident and one of the
| seven employees involved in the systems' dispute, submitted
| a letter to McGinnis Friday before the hearing describing
| his experience.
|
| > One of his colleagues received an offer from Ascension
| that was attractive "not just in pay but also a better
| work/life balance," which caused others on his team to
| apply, Breister wrote.
|
| > After approaching ThedaCare with the chance to match the
| offers they'd been given, Breister wrote that they were
| told "the long term expense to ThedaCare was not worth the
| short term cost," and no counter-offer would be made.
|
| https://news.yahoo.com/know-battle-over-fox-
| valley-235851212...
| andrei_says_ wrote:
| So the new employer can employ them through a third party
| agency, right? And create said agency if needed.
| s1artibartfast wrote:
| Context reminder, in an emergency the government can also
| conscript you to go die in a foreign war
| smorgusofborg wrote:
| And of course a big problem has always been that
| Halliburton can't conscript you to improve their bottom
| line when fighting a foreign war. Good thing we are fixing
| that.
| seibelj wrote:
| Before everyone loses their minds that somehow this is the free
| market run amok, keep in mind that healthcare is one of the most
| regulated and government-involved industries not only in the USA
| but on earth.
|
| For example, you can't even construct a new healthcare facility
| in most states unless a group of bureaucrats agrees there is a
| "need" for one https://www.investopedia.com/terms/c/certificate-
| of-need.asp
|
| Here is an entrepreneurial doctor trying to add MRI machines to
| his practice, stymied by the glorious government of North
| Carolina https://www.vox.com/policy-and-
| politics/2018/7/31/17629526/m...
| ethbr0 wrote:
| To be fair, "I've just been in a car accident and require
| immediate stabilization followed by airlift to a Level I trauma
| center" is a process most of us don't think about.
|
| There's nothing that says a Level I trauma center needs to
| exist... except planning (largely by states) to try and ensure
| it does. And a lot of ensuring availability means balancing
| profitability against access to the market.
|
| A VC firm financing a facility across the street, until it
| loses interest and both implode financially, is of no good to
| anyone.
| seibelj wrote:
| My point is that before people go crazy about a judge not
| letting people quit, a judge also won't let you work in this
| industry simply because you want to. It's a highly regulated,
| government-interfered business so nurses being disallowed
| from jumping to another hospital is not surprising in the
| context of all the ways the market is managed.
| lotsofpulp wrote:
| Requiring person A to have qualifications to sell something
| to person B is not comparable to stopping person A from
| selling something B.
| novok wrote:
| I think there is a bit of a difference between "we have to
| make sure a level 1 trauma center exists" and "we will
| restrict people building more level 1 trauma centers
| indepedently", which is what I think the parent comment was
| implying.
| bediger4000 wrote:
| This is grotesquely anti-free market. Labor has to be able to
| pick and choose employers freely for a free market to work. This
| Judge is actively anti-capitalist.
|
| I can only conclude that the Judge is a closet socialist, or
| worse, a communist.
| diob wrote:
| This is the actually the result of a free market. In the end,
| everything gets captured by whoever has the most capital /
| power.
| Natsu wrote:
| I think GP is talking about the ruling, not about people
| leaving for another employer.
| diob wrote:
| I know, what I said applies to courts / rulings as well.
| Unfortunately capitalism has been allowed to run amok so
| much that our entire society here is capitalist controlled.
| Hence why the judge has ruled so that the capitalists can
| have their cake (they know the peasants can't not work, as
| they own no capital).
|
| Every time something goes wrong in capitalism, folks like
| to claim socialism or communism. This is literally
| capitalism.
| pxmpxm wrote:
| So a judge _preventing_ a free market outcome (employers
| competing for talent and inducing medical staff to join a
| competitor presumably due to higher comp) is somehow a
| result of capitalism /free market?
|
| I don't think you'll win too many people over to the
| collectivist side with incoherent points like the above.
| Natsu wrote:
| I don't think capitalists or communists like this one.
| This is very much a place that would (and should) go out
| of business but for this government intervention.
|
| But I quoted the ruling well above, it doesn't say that
| they can't work for the new employer, just that the new
| guy has to either make one person available so the other
| can continue to operate or it can choose to cease hiring
| more staff. So they can be employed by the new employer
| for more money, they just have to help this place limp
| along until it can find people to work there (which... I
| can't imagine anyone wanting to after this).
|
| Presumably this isn't so much for the employer's benefit
| as for the public so that they don't lose access to a
| medical facility with the particular licenses it has.
|
| But yeah, I don't think anyone argues that this business
| isn't too dumb to survive after it rejected their
| counter-offers when they had a new job in hand, what the
| hell did they think was going to happen?
| anonymousab wrote:
| > what the hell did they think was going to happen?
|
| That the government would help them enforce their
| exceptional control over their employees, at least to the
| extent of making their lives hard enough in the short
| term that they would either have no choice but to return,
| or would serve as an example of what happens to anyone
| who thinks to leave in the future. So far, they seem to
| have thought right.
| Natsu wrote:
| >That the government would help them enforce their
| exceptional control over their employees,
|
| They didn't get that. The injunction doesn't cover the
| employees at all, only the new employer, who either has
| to make someone available so the original place can
| continue in operation for a bit.
|
| So it seems like they're working at the new place with
| the new, higher wages and the old place is going to pay
| legal fees + whatever compensation to the new employer.
|
| Financially, they've only managed to screw themselves
| even with this injunction. I quoted the injunction text
| in another thread on this story, BTW, since the headline
| is flat out wrong.
| fzeroracer wrote:
| There's a major difference between employees that hold
| capitalist views and employers with capitalist views.
| Namely, the amount of capital they hold and the way they
| try to leverage it.
|
| If you ask any CEO if they're a capitalist or not, they
| will enthusiastically agree. However, employees are
| considered part of their capital which is why they will
| gladly toss in things like non-competes, assignment of
| inventions and float things like suing employees for
| failure to give proper resignation notice.
|
| The goal here isn't to retain employees. They've even
| mentioned that they felt no need to attempt to retain
| them and this injunction solely prevents them from
| working at their new company. This is simply to punish
| them and to try and scare current workers to prevent them
| from doing the same. Will it work? Probably not. Though
| hopefully people start realizing that things like at-will
| employment are solely for the employers benefit, not
| yours because of the other legal ways they have to punish
| you if they so desire.
| Natsu wrote:
| > this injunction solely prevents them from working at
| their new company.
|
| Actually the headline appears to be just plain wrong, if
| you look at the other threads I quoted it there. It
| doesn't bind the employees who left at all, it asks the
| new employer to make one person (not necessarily even
| these folks) available so they can continue to operate.
|
| This place deserves to go out of business, frankly. The
| ruling seems aimed only at making sure that there's
| someone to care for people who need medical care in the
| short term, not so much for the benefit of this stupid
| employer who shot themselves in the foot.
| lotsofpulp wrote:
| Then the judge should have forced the company to open its
| purse. For example, all of the executives' pay is
| diverted to the nurses they want until they hire new
| people.
|
| Executives get a heads you win, tails you lose situation
| for no reason. It was their job to make sure the place is
| offering sufficient compensation to stay staffed, and if
| they failed, they need to pay for the damages.
| yucky wrote:
| Capitalism likes free markets. This is the exact opposite
| of that.
| yucky wrote:
| I'm not OP but surely you don't think US healthcare is a free
| market, do you? It's probably the most regulated industry we
| have.
| ngngngng wrote:
| Can someone steelman this judges reasoning here for me? I just
| can't see it. This seems like insanity to me in at at will state.
| The worst part is that the damage has already been done.
| Employees that would have left their job to find better work will
| now be terrified of this happening to them unless we make laws
| explicitly forbidding this.
|
| It's just like non competes. They're mostly unenforceable but
| employers don't want to risk someone trying to enforce it so they
| just won't hire you.
| afiori wrote:
| Just reposting another comment:
| https://news.ycombinator.com/item?id=30040209
|
| > The point of the injunction isn't to come up with a perfectly
| fair solution. It's to prevent irreparable harm, as might be
| caused if the only level 2 trauma center in the area can no
| longer function. Any claims for compensation that the nurses
| have are still valid and can be settled later.
|
| As someone whose only law training is watching law review
| channels on YouTube I agree.
|
| Basically getting paid at the same rate rather than an
| increased rate is repairable harm (by paying money if the
| nurses win), forcing downtime at their clinic is not.
|
| This assumes that the old employers have some kind of legal
| standing to make their victory at least plausible.
| vsskanth wrote:
| I don't understand how encroaching on the civil liberties of
| citizens is legally allowed for keeping a medical center
| staffed (however necessary it is deemed to be).
|
| For example, is it legal for a town to, let's say, select 5
| people and say they can only work as firemen for the local
| fire station and no one else is allowed to employ them
| because we absolutely need a fire station ?
| afiori wrote:
| In the context of ironmanning the position the framing is
| very different:
|
| Party A: the firemen. Party B: the city.
|
| A want to stop providing a service for B. B want A to keep
| providing the service. On all precedents, laws, and common
| sense they are allowed to do so. B claims that this will do
| irreparable damage to life/property/society and ask a judge
| to mediate the conflict and also to make B keep proving the
| service while the conflict is being mediated.
|
| In this specific case a fireman could not simply walk off
| the job in the middle of suppressing a fire, the city
| position is that firemen are always a critical
| infrastructure and either the firemen claim that the city
| is at fault for some reason or they guarantee continuity of
| the service they where providing.
| vsskanth wrote:
| In this context (the nurse case), the firemen are at will
| employees and don't have a contract with the city. They
| don't even have to provide notice.
|
| In addition to that, employees aren't property (as of
| 2022). They have certain rights and liberties that can't
| be taken away.
|
| So my original question still remains unanswered.
| afiori wrote:
| I was steelmanning the position of "a judge orders people
| where to work" and so I came up with a convoluted
| scenario where that could be argued to be true.
|
| Whether employees are property is a separate matter; In
| may situation the assumptions are
|
| 1) the firemen hold a specialized job with specialized
| requirements
|
| 1.a) it would take considerable time to replace them
|
| 2) their service is critical
|
| 3) they took responsibility for providing a service
|
| 4) the city did everything right and there is no material
| need to leave the job
|
| I am not surprised by this story being more nuanced.
|
| Another even more convoluted case: can all the personnel
| of a nuclear power plant walk off mid shift with no one
| to keep it working safely?
|
| Some jobs also include taking responsibility of others
| life, a best effort to keep the service running is not
| too much of a stretch.
| lotsofpulp wrote:
| Yes, the nuclear power plant workers can walk off mid
| shift.
|
| Hence the incentive for the employer to provide
| appropriate compensation and hire sufficient redundant
| staff.
|
| If you want redundancy and reliability, then pay for it.
| Limiting labor sellers' freedom is unacceptable,
| especially when the labor buyers have no such
| expectations of commitment and can stop buying labor
| anytime they want. Society cannot have its cake and eat
| it too.
|
| This employer must have been grossly underpaying staff to
| have a whole team up and leave, especially educated
| professionals.
| MattGaiser wrote:
| You can do so for law enforcement in some ways or at least
| historically could.
|
| https://en.wikipedia.org/wiki/Posse_comitatus
| pxmpxm wrote:
| Yeah, there's also the pragmatic aspect of that issue - you
| can probably guess the amount effort you'll get out of
| someone if you're actively trying to compel them into the
| role.
|
| It's probably not that great to have a fire station staffed
| by firemen that don't want to be firemen.
| afiori wrote:
| it beats not having a fire station likely.
| daniel-thompson wrote:
| > Basically getting paid at the same rate rather than an
| increased rate is repairable harm (by paying money if the
| nurses win), forcing downtime at their clinic is not.
|
| There is "downtime" at the old place either way, since the
| nurses are not going to show up at the old hospital on Monday
| anyway. From the TFA:
|
| > That means the seven health care workers would not be
| working at either hospital on Monday.
| s1artibartfast wrote:
| Steal man/devils advocate here. The judge didn't make the law.
| They are just communicating it. If you don't like the outcome,
| vote for politicians that will change the law.
|
| Note:I would have to see the court ruling to see what the basis
| in law is
| SllX wrote:
| Can't steelman an argument that isn't in front of me, but it's
| probably a unique decision to this case that relies on the
| following alleged facts: 1. Ascension Wisconsin poached 7 of
| ThedaCare's staff in a short period of time that were all part
| of an 11 person team 2. ThedaCare-Neenah is the only Level II
| Trauma Center in Fox Valley and 3. the people on this team have
| a set of hard to replace skills that the people of Fox Valley
| depend on and 4. this is a temporary order, only sufficient
| time for ThedaCare to find replacements.
|
| So the damage you're worried about being done? I don't want to
| discount the damage this might do to the 7 people who tried to
| change employers, but ThedaCare wants them to stay, _working_ ,
| which means getting paid, for that time, and this is unlikely
| to realistically affect anyone in a completely different
| industry and profession.
|
| Was it a good or fair call by the judge? Hard to say, but the
| "this will set a new precedent" types of arguments against an
| order or decision rarely end up setting the kinds of
| sustainable precedents people imagine they could.
| [deleted]
| supernova87a wrote:
| I hope this gets rapidly overturned/reviewed. I don't understand
| how one company can be granted an injunction against another for
| hiring people who have left that company (based on the claim that
| it would hurt the previous company).
|
| I liken it to being able to sue your competitor for buying the
| last widget in the open market that you also needed to
| manufacture your product. In what way is that an enjoin-able
| action?
|
| But maybe my legal understanding is poor.
| js2 wrote:
| This judge is a piece of work:
|
| https://urbanmilwaukee.com/2018/10/08/court-watch-42-days-in...
|
| https://www.wjiinc.org/blog/outagamie-county-justice-the-fbo...
|
| https://www.postcrescent.com/story/news/2018/12/20/reviewer-...
|
| https://www.postcrescent.com/story/news/education/2018/12/11...
| danhab99 wrote:
| jleyank wrote:
| I don't see what the problem is because the courts and government
| can't get involved in private matters (vaccines, mandates).
| Conversely, the courts and governments can get involved in
| private matters (abortions, vaccines, mandates). It's all
| perfectly clear - do what those in control want and everything
| will be fine.
|
| Unfortunately, this isn't really sarcasm anymore.
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