A recent federal court decision is a significant reminder to health care organizations that by sharing wage data they may open themselves to protracted, expensive litigation. 

The decision last week by a federal court in Albany, NY, partially certified a class of nurses in which the plaintiffs allege that, through the exchange of wage information, unaffiliated Albany-area hospitals engaged in a conspiracy to suppress nurses' wages. Fleischman v. Albany Medical (formerly Unger v. Albany Medical Center) is one of four proposed class action cases we highlighted in an alert on July 13, 2006, and the first in which the court has addressed the plaintiffs' class action status.

The plaintiffs in Fleischman sought certification of a class of 2,300 registered nurses employed by the defendants since June 20, 2002. The court certified the class for certain aspects of the antitrust law claims, including whether the proposed plaintiff class suffered an "antitrust injury"—that is, an injury of the type antitrust laws were intended to remedy. The court refused, however, to allow the plaintiffs to proceed as a class on the determination of the facts and extent of any damages. As a result, any nurse who wishes to pursue his or her claims against the hospitals must show that he or she personally lost wages as a result of the hospital's alleged conduct. 

Although only a partial victory for the plaintiffs, the decision is a cautionary reminder to health care organizations regarding the exchange of wage information without guidance as to risk factors and government approved safe harbors. Indeed, all four cases we highlighted in the alert two years ago are still being litigated, having involved extensive discovery and, no doubt, concomitant costs and diversion of resources. 

For more information or advice on antitrust issues, contact Stephen J. Kastenberg or Leslie E. John; or healthcare issues, contact Jean C. Hemphill

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