I wasn’t commenting on the story per se. It was a general question of if courts can force private citizens to give up their rights in the name of “people will die” or even a more general public health concern.
I don’t believe that “the system” is deliberately corrupt or intentionally out to screw the little guy. But it’s hard not to notice that the system often does end up screwing the little guy whether it intends to or not.
It seems to me that an eminently possible outcome of this case is that the employees get stuck in limbo for a while, both ThedaCare and Ascension hire others in the meantime since they have positions that need to be filled, and the employees end up with no jobs and large lawyers’ bills to pay. All of that could happen in complete legality and yet screw the little guys. (To be fair, as in-demand healthcare workers they probably wouldn’t be unemployed for long.)
I take your point, but I still can’t help but raise an eyebrow at the idea that, while this was ostensibly put in place to save lives in hopes that they’ll do their old jobs instead of starting new ones, it — doesn’t actually compel them to do their old jobs, and may well result in no additional lives being saved, because the reason cited isn’t actually at issue.
I think the de jure result of go ahead and don’t work while this is sorted out is at odds with the de facto result of people gotta feed their family.
I mean this is the fundamental dissonance at the heart of this order - even if it was just for the weekend and does end on Monday. On the one hand it is claimed that the order isn’t imposing involutary servitude on the employees because it doesn’t force them to work for ThedaCare. At the same time the order is justified on the basis that it prevents ThedaCare’s patients from dying - which it can only do if it does force them to work for ThedaCare.
But — and I apologize for continually harping on this, but it fascinates me — imagine someone asked for an injunction in hopes of, say, stopping a woman from destroying evidence over the weekend; except they don’t actually ask for that, they just ask for an injunction to stop her from driving to where the evidence is.
That’s right: she’ll have to pay a cabbie, or ask a friend for a ride, or walk there, or whatever, because this here injunction (a) that’s only justified in terms of stopping her from doing something, (b) doesn’t de jure stop her from doing that; it only stops her de facto, except, y’know, maybe it doesn’t.
Does that pass the giggle test?
Yeah, I only think a chilling effect will result if there actually is a delay, or at least if this practice isn’t unambiguously rejected.
This doesn’t pass the giggle test because it’s taking an indirect method of doing something the court is genuinely allowed to do (attempt to prevent someone from destroying evidence) and doing it in an obviously ineffective way. Trying an indirect method to do something the court would not be allowed to do and doing it in a way that is effective would not pass the giggle test for the opposite reason.
Is this the fuck-up? Because it seems like ThedaCare made its decision based on economics, not whether people would die.
It is really not that difficult. Due to the 13th Amendment and our history regarding chattel slavery, any orders to force someone to labor where they don’t want to (historical grounds like conscription and jury service exempted) will be met with disfavor by any court.
On the other hand, realizing that people need money in order to eat and will likely work in a place where there is available employment, especially employment that they are currently performing, is not many steps more coercive than the general need to find employment to begin with.
In my mind, that is why the two things are worlds apart, because that option not to work, even if it is a non-desirable one, is not forced labor akin to chattel slavery.
But, to the exact extent that that’s true, they presumably can’t justify the order; and to the extent that it isn’t true, they — presumably can’t justify the order.
How so? If the judge knows that the order will cause people to remain at their employment, not by force of law, but by personal choice, then that is different than doing it by force of law. Understanding the likely impact of an order does not convert what is otherwise not forced labor into forced labor.
To me, this is like criticizing a “no beer after the 7th inning” policy at games to curb DUI to be inconsistent because it affects people who didn’t drive to the game, and also people can just double up on beers in the 6th inning.
It is a policy that gets the desired result and is one which the judge has the power to enter.
If patients are going to die, then maybe ThedaCare shouldn’t be in business.
ThedaCare his large healthcare conglomerate that has well over of the market share in their service area. They have 7000 employees and they can’t cover for seven?
Seriously, if these seven employees are critical to the life safety of ThedaCare patients, maybe they should’ve been under contract - one that forbids all 7 from taking the same plane or riding in the same motor vehicle - because if they were all killed or injured at the same time- patients would DIE.
Besides, ThedaCare could’ve averted this situation by matching or beating Ascension’s job offers. It’s ridiculous to argue that a company this size just can’t afford to give just seven specialized employees, employees that are apparently so critical that wards full of patients will die if they don’t show up Monday, a raise.
If they won’t pay market rates for employees they need to perform specialized services, maybe they shouldn’t be performing those services.
But that’s just it: this might not get the desired result. It may well result in zero additional medical-type work getting done at the old job, while simply and only delaying them from doing medical-type work at the new job. People may well die because of this.
I don’t disagree and maybe that is what will come of this whole thing. But for right now, temporarily, it doesn’t matter whose fault it is. The judge is just trying to stop what has been alleged to him to be a tragic result if he didn’t act now.
People will die if they don’t go back to work but as you point out he can’t force them to go back to work so what is the point of the injunction?
Second, given the reality that he can’t force them to work at Place A, how can he legally prevent them from working at Place B?
It’s especially ridiculous when you figure in that ThedaCare, along with every other major healthcare provider, is relying heavily on travel nurses and other specialized workers because they’re losing workers at a brisk rate to COVID, burnout and other causes. Travel nurses get paid WAY more per hour than regular employees, and if you read the comments in the Reddit threads I posted up there you’ll find comments from ThedaCare employees verifying that they do indeed work right alongside travellers who make twice what they do and many of them are considering quitting to be travellers too. The free market is showing those employees that there is indeed a much higher ceiling of value for their labor and I see no reason whatsoever why they shouldn’t take advantage of that. If we do, indeed, have free markets then EVERYONE is free to sell their labor for whatever they can get. This is kind of indicating that we DON’T have free markets, if workers can be restrained from making their own deals for their labor.
The other thing that’s ridiculous is that ThedaCare has posted hiring notices for those positions and is offering bigass signing bonuses for DIFFERENT employees, unknown and unproven ones, but won’t even consider offering some of that to existing employees. So they’re telling their existing employees that they are not valued as much as travellers and not as much as someone walking in the front door. But no, they aren’t allowed to leave this place, they must be forced to stay. Not sure what you call that, but “free market” is not what springs to MY mind.
The court has in effect acknowledged the possibility of harm to the previous employer in which time could be granted for them to correct that harm. However, the new employer has established the worth of the employees. any attempt to hire replacement employees will involve the going rate for their services and that was turned down as a solution by the original company.
Additional time isn’t going to change the going rate so I don’t see a case going forward. Offer more money for the position or send your patients to the new hospital.
If ThedaCare is seriously alleging that lives are on the line, then there needs to be criminal charges brought against the ThedaCare executives. They could have taken reasonable action to prevent the danger, but didn’t. That’s negligence.
Criminal liability is for little people. This is the US of A!