Thursday, January 27, 2022
Two hospitals, the seven workers who quit one hospital to join the other, and a short-lived temporary restraining order. According to the complaint in Thedacare, Inc. v. Ascension N.E. Wisconsin, Inc. (and not much else), this is their story, plus a Thirteenth Amendment puzzle that never got fully litigated.
Our story begins in Wisconsin’s Fox River Valley. There, ThedaCare owns and operates the Neenah Medical Center, which provides high-level trauma and stroke care, thanks in part to an interventional radiology and cardiovascular team (“IRC team”) based there.
Between December 21, 2021, up through January 7, 2002, ThedaCare learned that four invasive radiology technicians on its IRC team at Neenah (all of them), plus three Thedacare nurses, intended to quit to go work for Ascension at its St. Elizabeth Hospital facility in Appleton. From work emails ThedaCare found, it believed that Ascension had interviewed and negotiated employment terms with the departing employees throughout November and December 2021. The departing IRC team workers were all scheduled to exit Thedacare at the same time. Their last day was January 21, and they’d begin working at Ascension on January 24.
Before that happened, Thedacare had asked Ascension for “ninety days of access to one invasive radiological technician per day and one nurse with radiology training to provide ThedaCare sufficient time to hire replacement staff for the departing IRC team members.” Ascension declined.
So, on January 20, 2022, Thedacare sued Ascension in Wisconsin state court, arguing that Ascension committed tortious interference with contract “by poaching the resigning IRC team members from their continuing employment with ThedaCare and arranging for their simultaneous resignation.” As a remedy, Thedacare asked for an injunction ordering Ascension to either (1) “make available one invasive radiology technician and one registered nurse” per day from among the exiting workers; or (2) stop hiring those workers until Thedacare had hired “adequate” staff to replace them. That same day, Thedacare got from a Wisconsin Circuit Court judge (Mark J. McGinnis) a temporary restraining order that ordered Ascension to do just that.
In turn, Ascension’s lawyers pressed the judge about this TRO, citing in part the Thirteen Amendment’s Involuntary Servitude Clause and a parallel provision in Wisconsin’s Constitution that barred “involuntary servitude in this state,” Wis. Const. art. I, sec. 2. The judge amended the TRO, striking the “make available” part but keeping the stop-hiring proviso. But a few days later (January 24), that judge, after a hearing on the matter, dismissed the TRO in its entirety, because, according to one press account, “ThedaCare could rely on alternate staffing solutions it already is pursuing to preserve care, including cross-training employees who do similar jobs at ThedaCare’s Appleton hospital.”
Now, the puzzle that never got fully litigated: Suppose that because the seven workers left, Thedacare could no longer provide the same level of trauma and stroke care at its Neenah facility. If so, would a Wisconsin appellate court have upheld a court order enjoining Ascension in the way Thedacare originally wanted? Answer: Not likely.
Had Thedacare sought to enjoin not Ascension but the departing workers to keep working for it, Thedacare would have faced a serious Thirteenth Amendment problem. Since Bailey v. Alabama (1911), courts have read the Thirteen Amendment’s Involuntary Servitude Clause to ban most laws that, upon the threat of criminal sanction, coerce workers into staying with their current employers when they would otherwise quit. Wisconsin’s parallel provision has been similarly read, see State v. Brownson, 157 Wis. 2d 404, 411-13 (Ct. App. 1990), and, in dicta, taken also to prohibit the compulsion of “an individual to labor against his or her will as part of the remedy of specific performance.” Id. at 412 n. 4. The idea: injunctions to compel work, while not criminal law, are still backed by a court’s contempt power and thus coercive enough to justify the protections of Involuntary Servitude Clause doctrine.
Here, of course, Thedacare sued Ascension, not the exiting workers. But there are some razor thin lines between (a) directly ordering the workers here to go back to work for Thedacare; (b) ordering Ascension to direct those workers to go work for Thedacare; and (c) ordering Ascension to not employ those workers until Thedacare gets enough staff to make up for their departure. The worry: In any of these cases, because of the court order, the cumulative coercive effect on the quitting workers to keep working for Thedacare is similar enough to the coercion that justifies Bailey and progeny. Sure, those workers could escape the indirect coercion – options (b) and (c) – by immediately quitting Ascension, but not really unless they had a third employer ready to hire them.
More generally, the court’s order here cut against an old idea: Involuntary Servitude Clause doctrine protects workers from legal coercion that unduly impedes labor mobility. Pollock v. Williams, 322 U.S. 4, 18 (1944) (“in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers”). For commentary, see, e.g., Pandya (2020); Pope (2010); and Oman (2009). This doctrine has exceptions, but not any “hospital worker” or “continuity of care” exceptions. So if Wisconsin appellate judges take this doctrine seriously, then the court order here, if not dismissed, would likely not have survived on appeal.