Can Wisconsin’s health system win a lawsuit to stop workers from leaving?

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A Wisconsin health care system is unlikely to prevail in its unusual attempt to use the legal system to force a group of employees to continue working at its hospital instead of starting their new jobs with a competitor.

Seven employees from ThedaCare, a seven-hospital system based in Neenah, Wisconsin, have accepted jobs with Ascension Northeast Wisconsin, a St. Louis-based division of Ascension. ThedaCare argues in its lawsuit against Ascension Northeast Wisconsin filed last week in Outagamie County Circuit Court that Ascension poached employees, decimating ThedaCare’s ability to provide critical care.

A judge on Monday dealt a blow to ThedaCare’s case by lifting a Jan. 21 order that had temporarily prevented employees from leaving their jobs at ThedaCare’s flagship Neenah Hospital to take up the same positions at the hospital. Ascent less than 11 miles in Appleton, Wisconsin. . January 21 was supposed to be their last day at ThedaCare, which serves more than 600,000 patients in 17 counties.

The employees in question are part of an 11-person interventional and cardiovascular radiology team that treats serious cases, such as trauma and stroke, at ThedaCare’s Neenah Hospital. Without them, ThedaCare claims in its lawsuit that “some patients could die.”

Cases like this are extremely rare. Matthew Collins, co-chair of Brach Eichler’s labor and employment law practice, couldn’t bring up an example of another employer trying to coerce employees at will into continuing to work there in the three decades he has practiced law.

Even more surprising, however, was the fact that the judge issued the initial temporary injunction, said Collins, who is not involved in the case. The judge’s decision to lift the injunction signals that they are unlikely to win the case, he said.

While ThedaCare might be able to make a compelling case for patient safety, Collins said the concept of employment at will has been around since the late 1800s, when indentured servitude was effectively outlawed in the states. -United.

“Some people would probably view the relief ThedaCare was seeking as a form of indentured servitude,” he said, “essentially forcing someone to work not just at less pay, but in a place where they don’t want any just not working. . ”

For its part, Ascension denies having poached the employees. The Catholic system claims to have applied for public positions to work at its Appleton hospital in the same way as anyone. Ascension’s specific response filed January 24 said ThedaCare had “only to blame itself” for failing to maintain a competitive work environment, underpaying staff and refusing to match Ascension’s offerings. Ascension said ThedaCare rejected several alternatives to retain or replace employees, opting instead to “waste its money and everyone’s time on this frivolous lawsuit.”

“With this frantic last-minute lawsuit, ThedaCare attempts to turn its own mismanagement into a disruptive personal emergency for everyone – anyone – except itself: Ascension, this Court and (worst of all) seven essential healthcare workers who until Friday thought they were starting new jobs Monday morning,” Ascension wrote in its filing.

The first x-ray technician Ascension hired from ThedaCare was Kailey Young, who Ascension says applied through the normal process, received an offer with better pay, and then told her co-workers, a close-knit group. who “had grown increasingly dissatisfied with the direction of ThedaCare”.

Timothy Breister, an invasive cardiovascular technologist who is among ThedaCare employees hired by Ascension, wrote in a Jan. 21 letter to the judge that Ascension “in no way recruited any of us seven.” Instead, he said one person had received an “exceptional” offer which, in turn, prompted others to apply.

After receiving offers from Ascension, Breister said the group collectively asked ThedaCare on Dec. 21 for counter-offers, which the health system declined to provide on Dec. 28. The next day, the band collectively quit, he said.

In its complaint, ThedaCare explained that its Neenah hospital serves as a hub for critically ill patients from as far away as Michigan’s Upper Peninsula suffering from strokes or trauma. It is designated as a Level II Trauma Center, the second highest trauma designation. Tier II hospitals must maintain some trauma services, including 24-hour interventional radiology.

ThedaCare says if the seven employees leave, it won’t be able to treat all of the patients who need intensive care and will have to divert some to Madison or Milwaukee, both of which are about 100 miles away.

ThedaCare said the COVID-19 pandemic has made diverting patients even more difficult as it has triggered an unprecedented lack of capacity in hospitals. In Wisconsin, nearly 92% of staffed hospital beds and 94% of staffed intensive care beds were occupied as of Jan. 19, according to the complaint.

The pandemic has also made maintaining adequate staff, especially nurses, a nightmare for hospitals, as many have quit for better-paying travel gigs and contract worker rates have risen.

Ascension disputed ThedaCare’s claim that it will have to divert patients to Madison or Milwaukee. He said the seven employees in question, none of whom are doctors, will perform exactly the same roles at Appleton Hospital, a Level III trauma center. Ascension said its Appleton hospital offers the same medical services at issue “just without the fancy designation.” ThedaCare and Ascension recruit their physicians from the same radiology practice.

Lynn Detterman, president of ThedaCare’s Neenah Hospital, dismissed that claim in a separate court filing, writing that Appleton Hospital is a “primary stroke center, not a full stroke center.” The closest Comprehensive Stroke Center is in Milwaukee, she said.

Detterman said that on Jan. 14, ThedaCare tried to convince the departing workers to continue their jobs, but they couldn’t come to an agreement. Several days later, his team met with Ascension executives and requested 90 days of access to an invasive x-ray technician a day and a trained x-ray nurse to give them time to find replacements. Ascension denied the request.

In its own filing, Ascension criticized ThedaCare’s decision to wait until January 18 to contact Ascension, despite having been aware of the potential departures since December 21.

On Wednesday, Ascension said in a statement that it was pleased with the court’s decision to overturn the temporary restraining order preventing seven employees from starting work at Ascension Wisconsin.

“We welcome our new associates,” the system said.

ThedaCare also shared a statement that its goal was always to create an orderly transition in the short term, not to force team members to continue working at ThedaCare.

Collins likened the case to wide receiver Antonio Brown’s decision to walk off the field a few weeks ago during a national football game. In this case, the Tampa Bay Buccaneers would not sue to force Brown to play football, even if he violates his contract. In this case, ThedaCare employees did not breach any contract or commit any misconduct by seeking better paying jobs.

“To actually force someone to work against their will is the real challenge with the kind of relief ThedaCare is looking for here,” he said.

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