Two hospitals, the seven workers who quit one hospital to join theother, and a short-lived temporary restraining order. According to thecomplaintin Thedacare, Inc. v. Ascension N.E. Wisconsin, Inc. (and not muchelse), this is their story, plus a Thirteenth Amendment puzzle thatnever got fully litigated.
Our story begins in Wisconsin’s Fox River Valley. There, ThedaCare ownsand operates the Neenah Medical Center, which provides high-level traumaand stroke care, thanks in part to an interventional radiology andcardiovascular team (“IRC team”) based there.
Between December 21, 2021, up through January 7, 2002, ThedaCare learnedthat four invasive radiology technicians on its IRC team at Neenah (allof them), plus three Thedacare nurses, intended to quit to go work forAscension at its St. Elizabeth Hospital facility in Appleton. From workemails ThedaCare found, it believed that Ascension had interviewed andnegotiated employment terms with the departing employees throughoutNovember and December 2021. The departing IRC team workers were allscheduled to exit Thedacare at the same time. Their last day was January21, and they’d begin working at Ascension on January 24.
Before that happened, Thedacare had asked Ascension for “ninety days ofaccess to one invasive radiological technician per day and one nursewith radiology training to provide ThedaCare sufficient time to hirereplacement staff for the departing IRC team members.” Ascensiondeclined.
So, on January 20, 2022, Thedacare sued Ascension in Wisconsin statecourt, arguing that Ascension committed tortious interference withcontract “by poaching the resigning IRC team members from theircontinuing employment with ThedaCare and arranging for theirsimultaneous resignation.” As a remedy, Thedacare asked for aninjunction ordering Ascension to either (1) “make available one invasiveradiology technician and one registered nurse” per day from among theexiting workers; or (2) stop hiring those workers until Thedacare hadhired “adequate” staff to replace them. That same day, Thedacare gotfrom a Wisconsin Circuit Court judge (Mark J. McGinnis) a temporaryrestrainingorderthat ordered Ascension to do just that.
In turn, Ascension’s lawyers pressed the judge about this TRO, citing inpart the Thirteen Amendment’s Involuntary Servitude Clause and aparallel provision in Wisconsin’s Constitution that barred “involuntaryservitude in this state,” Wis. Const. art. I,sec. 2.The judge amended the TRO, striking the “make available” part butkeeping the stop-hiring proviso. But a few days later (January 24), thatjudge, after a hearing on the matter, dismissed the TRO in itsentirety,because, according to one press account, “ThedaCare could rely onalternate staffing solutions it already is pursuing to preserve care,including cross-training employees who do similar jobs at ThedaCare’sAppleton hospital.”
Now, the puzzle that never got fully litigated: Suppose that because theseven workers left, Thedacare could no longer provide the same level oftrauma and stroke care at its Neenah facility. If so, would a Wisconsinappellate court have upheld a court order enjoining Ascension in the wayThedacare originally wanted? Answer: Not likely.
Had Thedacare sought to enjoin not Ascension but the departing workersto keep working for it, Thedacare would have faced a serious ThirteenthAmendment problem. Since Bailey v. Alabama(1911), courts have read theThirteen Amendment’s Involuntary Servitude Clause to ban most laws that,upon the threat of criminal sanction, coerce workers into staying withtheir current employers when they would otherwise quit. Wisconsin’sparallel provision has been similarly read, see State v. Brownson, 157Wis. 2d 404, 411-13 (Ct. App.1990), and, in dicta, taken alsoto prohibit the compulsion of “an individual to labor against his or herwill as part of the remedy of specific performance.” Id. at 412n. 4. The idea:injunctions to compel work, while not criminal law, are still backed bya court’s contempt power and thus coercive enough to justify theprotections of Involuntary Servitude Clause doctrine.
Here, of course, Thedacare sued Ascension, not the exiting workers. Butthere are some razor thin lines between (a) directly ordering theworkers here to go back to work for Thedacare; (b) ordering Ascension todirect those workers to go work for Thedacare; and (c) orderingAscension to not employ those workers until Thedacare gets enough staffto make up for their departure. The worry: In any of these cases,because of the court order, the cumulative coercive effect on thequitting workers to keep working for Thedacare is similar enough to thecoercion that justifies Bailey and progeny. Sure, those workers couldescape the indirect coercion – options (b) and (c) – by immediatelyquitting Ascension, but not really unless they had a third employerready to hire them.
More generally, the court’s order here cut against an old idea:Involuntary Servitude Clause doctrine protects workers from legalcoercion that unduly impedes labor mobility. Pollock v. Williams, 322U.S. 4, 18(1944)(“in general the defense against oppressive hours, pay, workingconditions, or treatment is the right to change employers”). Forcommentary, 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 takethis doctrine seriously, then the court order here, if not dismissed,would likely not have survived on appeal.
– Sachin S. Pandya