While ThedaCare voluntarily dismissed its lawsuit against Ascension Wisconsin over former employees taking jobs with an Ascension hospital, the lawsuit made national news when the court’s injunction barred former employees from beginning work pending the judge’s ruling. The judge ultimately overturned the order, but the case highlighted the issues at play. ThedaCare proponents contend that worker retention issues have plagued healthcare facilities for the last few years and that significant damage is caused when a competitor raids staff (although there is some dispute as to whether a “raid” occurred in this case). The other issue at-hand is how non-compete, non-solicitation, and confidentiality considerations affect at-will employment (i.e., workers being able to leave an employer at will).
Business Takeaway: In this case, Ascension contended it did not recruit ThedaCare’s now-former employees, but rather, simply had a substantially better job offer that was communicated between the workers at issue. Further, reports are that ThedaCare was offered the opportunity to match Ascension’s offer but declined to do so. In either event, this case serves as a reminder of the importance of strong non-competition and non-solicitation language when and where necessary; but also, the limitations and related issues that come at a time in which attraction and retention is quite difficult. Contact us at firstname.lastname@example.org if you have questions regarding your non-solicitation protections.