I think it is that even with at will employees, I can’t attempt to kill my competition by hiring all of your employees, “poaching” as it would be. That was an allegation that ThedaCare made.
But that is the thing about money. It can always be paid later and it was. No harm was done to those employees. How do we disagree?
Without addressing any of the other discussion in the thread:
Could the employees in this situation collect unemployment as a result of this scenario? They voluntarily quit a job - which usually means no unemployment - but then the employer they left forced them to be unable to work.
I gather this was all resolved in a few days, but had the 90 day hold been in effect, it seems like there’d be some interesting lawsuits going on.
BTW - re noncompete: some companies have insane noncompete orders in place. Jimmy John’s (a sandwich chain) made even its minimum wage workers sign such a thing, a few years back (they’ve since quit doing so).
Why not? What statute or common law principle comes into play?
Based on some convo upthread, if the court determines that there wasn’t a legitimate purpose to the hirings and how they happened other than to put their competitors out of business there’s (I believe common) law against that.
Why? What law stops you.
Monopoly. Restraint of trade. I hire your employees with the promise of $1 million/yr salary, and then once you go out of business I fire them. Or I just pay them double the salary for one year to eliminate the competition. You cannot take intentional acts to eliminate your competition like that. I can try to put them out of business through good old fashion capitalism, but I can’t powder grind them.
Neither of which were pled by Thedacare. It only references tortious interference with contract.
None of that is simple poaching. Poaching is hiring away your competitor’s employees. Full stop. Absent pre-existing monopoly concerns, I could put up a billboard that says “I am putting ViresCorp out of business by hiring its employees and paying them more money!” and that would be kind of skeevy but not illegal so long as I’m legitimately putting those employees to work. (cite)
Beyond that, it is illegal for companies to make non-poaching agreements with one another because that actually is an antitrust violation (cite).
From your cite
If you squint hard enough, this looks a bit like the Thedacare case, at least when you don’t have enough information to decide the case is bunk.
Right, which is why I made sure to use the “legitimately putting those employees to work” qualifier. If I’m hiring a bunch of ViresCorp engineers and paying them to surf the web, that’s for sure going to be problematic.
But if I hire them to actually be engineers and just pay them more money and all the avocado toast they can eat while I neener neener neener at ViresCorp from my corner office window? I can’t see the legal problem unless I’m already monopolizing (or will soon be in a position to monopolize as a result of these hires) the market.
There wasn’t actually a legal problem, which is why the case was dismissed.
However, when Thedacare presents their argument to the judge, they will highlight things like:
- 7 of 11 members of a single department hired
- all hired to start the same day
- crippling Thedacare’s ability to provide the service
- a necessary service for the community
Which could be the result of predatory hiring. The fact that they were actually Thedacare being bad at business, is something that came out on the Monday when the order was listed.
Oh, I know. I was responding to the idea that poaching (which Ascension definitely did) is, in and of itself, illegal.
I don’t even know that I’d consider it “poaching”.
One thing I discovered when I was looking into this case is that is common to require some employees to live within a certain distance of the hospital. This has to do with the requirement that they are “on-call” and sometimes have to go to work on short notice. At least some of the employees in question ( it may have been all of them, I’m not sure) were subject to this requirement.
Because of this requirement, Ascension St. Elizabeth was, quite literally, the only other place they could work in their specialized fields without moving.
With this requirement in place, it seems that that there would be a lot of job mobility between the two facilities. When your only options for recruiting specialized workers are people that work at ThedaCare and people that are currently unemployed, it stand to reason that they would hire lots of people from ThedaCare.
Not to mention, the ThedaCare filing was laced with lies and half-truths - the biggest one being that the employees were still working for ThedaCare at the time the suit was filed. All but one of them had their last day a week or two before the suit was filed.
Also, they received their job offers at different times and the only reason most of them left at the same time was that ThedaCare rejected all their requests for a counter-offer at the same time….which is the reason that 5 of the employees gave their notice on the same day.
I think ThedaCare should be sanctioned for lying to the court and whatever organization regulates their certification needs to look at the way they falsified their employment records by keeping them on record as employees after they left.
Also, there is mention of how ThedaCare handled a situation with another employee. Absolutely no details so just guessing here but ISTM that after all of the employees got blown off by TC during negotiations then when THAT situation happened it was, “Fuck it. I’m outta here.”
It just clicked for me that this is one reason it might take at least several months to replace 7 specialized staff.
That doesn’t mean that ThedaCare shouldn’t have tried to retain them with a better offer – they should have thought of that earlier, and it’s even more reason that they should have tried harder to retain them. But if they have to recruit people to move within their required distance, and have the necessary specialized skills, that explains why it would take a long time to find 7 new people.
Which is neither the employees or Ascension’s problem. Which gets back to the whole “poaching” angle. Maybe there is tortuous interference for at-will employees if at 5:01pm on a Friday you offered all of the department jobs to start 8:00am Monday. But that’s not what happened here.
At here’s is what I don’t understand with the judge’s thinking. TC’s motion was straight-forward about the timeline and that they were whiny little babies that they didn’t get what they wanted (employees for life with less than far-market value pay and Ascension to provide them with workers to keep their Level II accreditation) and yet the judge still didn’t say, “Well that’s a YOU problem, not a THEM problem.”
And the whole idea that this had to be delayed until Monday. Why? TC claimed tortuous interference of contracts so why didn’t the judge say, “Let me read one of these contracts to see exactly what it says about quitting notification times or any non-compete clauses.” to which TC’s only response would be, “Your honor we are talking an implied contract where although they are at-will if we want to fire them, they are expected to work for us for life for whatever we choose to pay them.”
I slightly edited that bit after you quoted it. Just acknowledging that.
Yeah, I wasn’t really talking about the case itself. Some people were questioning earlier in the thread why ThedaCare was saying it would take 90 days to find replacement workers. I just realized why that would be.
I’ve said my piece about the Friday vs Monday stuff. I have nothing to add to that.
As I said, it is not my area of law, but I think that while you could legitimately like one or more of my employees and offer them a higher salary to come and work for you, then that is just fair free market stuff. But I believe, and others are saying I’m wrong, but I don’t think so, that if you do what you said you are doing, just hiring my employees for the purpose of putting me out of business, then that is a monopoly action, restraint of trade, and tortious interference.
And I think, again, it is because the public policy behind it is that if you are just a better company than me, then the community benefits if you succeed and I don’t. If you succeed and I don’t from a bare desire to aggressively put me out of business, then we aren’t so sure that was a good thing.