The Washington PostDemocracy Dies in Darkness

A health-care company tried to block workers from jumping to a competitor. They failed.

As workers are discovering during the ‘Great Resignation,’ ‘at-will’ employment cuts both ways.

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Usually, when the topic of “at will” employment comes up in this column, it’s in the context of explaining how employers can fire an employee at any time, for any reason that doesn’t break the law. But with the current job market tilting in workers’ favor, we’re seeing more of the employee side of the at-will coin: Unless you work under a contract or in a state that imposes certain exceptions, you are generally free to leave a job for any reason. And during the coronavirus pandemic, employees have been doing exactly that — for their mental and physical health, for better pay, for a fresh start.

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In response, employers are trying to entice their workers to stay. Most recommended retention strategies come in “carrot” form: raises, bonuses, flexibility, tuition support and other benefits.

Not recommended: the “stick” approach attempted by a Wisconsin health-care provider that asked a judge to block its former employees from starting their new jobs with a competitor.

As first reported by Appleton Post-Crescent reporter Madeline Heim, nonprofit health-care organization ThedaCare sued its competitor, Ascension, for poaching seven employees. ThedaCare requested an injunction to prevent those employees from starting work at Ascension, arguing that their departure would hamper its ability to offer critical round-the-clock trauma and stroke care, presenting a public health threat. (No explanation of how preventing health-care workers from doing their jobs at all would benefit public health.)

A judge granted the injunction on Jan. 21, but overturned it the following Monday after determining that ThedaCare had other options to fill staffing gaps. The employees missed only one day at their new job, and ThedaCare is expected to compensate them for that day’s lost wages at the rate they would have received from Ascension. But that was enough time to generate outraged discussions online over what looked like an attempt to prevent at-will employees from exercising their right to choose where and how they earn their livelihood.

“That’s what competition is all about,” said Declan Leonard, business law partner at Berenzweig Leonard. “At-will employment is designed to encourage free flow of employees, and also to allow employers to make the decisions that are best for their company.”

The Wisconsin workers were at-will employees with no contractual restrictions on changing jobs. But sometimes, it’s not so cut-and-dried, as in the case of the following reader.

Reader: I took a job last year and signed an employment contract that requires me to provide 60 days’ notice upon resignation. The workplace has proven to be toxic, so I am looking for a new job. The issue is that the 60-days’-notice requirement is off-putting to potential employers, although I think I could muster at least 30-45 days.

Besides a potential reference or reputational issue, do I need to be worried about legal consequences if I give less than 60 days’ notice before leaving? My contract does not list any penalty. I haven’t received any bonus or stock or anything that they could take back. I’m trying to do the right thing here.

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Karla: All stick, no carrot — and the stick is invisible. And presumably your employer still retains the right to let you go at any time without pay.

“I understand from the employer’s viewpoint why they would want more notice,” says Leonard, so you can help train your replacement and smooth the transition. That said, “60 days is a long time,” he adds. Leonard says he’d recommend an employer offer some sort of financial consideration to employees who fulfill the notice period, rather than relying on an implied “ … or else” that may or may not be enforceable.

Leonard said he’s not aware of many employers successfully enforcing notice provisions like the one you signed. “So if I were the employee, I wouldn’t have too much heartburn about leaving earlier than that 60 days,” he says. Still, Leonard said he would recommend giving as much notice as you’re reasonably able as a show of good faith.

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Then again, it sounds to me as though your interviews have been going well, and the 60-day notice is the only obstacle. If you were to give notice now, you might run out the 60-day clock in time to accept a new offer, fulfilling your contract without delaying your next step.

But it all comes down to your personal risk tolerance and what you know about your employer. Are they prone to suing over any breach of contract? How hard is your position to fill? Do you have backup income in case you’re between jobs longer than expected? Can you use up or cash out any accrued vacation leave? Two months is a long time to go without pay, but it’s also plenty of time for your life to change for the better.

Pro tip: Sometimes employers will try to withhold a former employee’s final paycheck as payback for quitting abruptly. Not a good idea, Leonard warns; most states strictly prohibit playing waiting games with earned wages.

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