Can Wisconsin system will suit to prevent workers from leaving for Ascension?

A Wisconsin health system is unlikely to prevail in its unusual attempt to use the legal system to force a group of employees to keep 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 division of St. Louis-based Ascension. ThedaCare argues in its lawsuit against Ascension Northeast Wisconsin filed last week in Outagamie County Circuit Court that Ascension poached the employees, decimating ThedaCare’s ability to provide critical care.

A judge on Monday delivered a major blow to ThedaCare’s case by lifting a Jan. 21 order that had temporarily blocked the employees from leaving their jobs at ThedaCare’s flagship Neenah hospital to work the same positions at Ascension’s hospital less than seven miles away in Appleton, Wisconsin . Jan. 21 was supposed to be their last day at ThedaCare, which serves more than 600,000 patients across 17 counties.

The employees in question are part of an 11-person interventional radiology and cardiovascular team that handles serious cases, like trauma and strokes, at ThedaCare’s Neenah hospital. Without them, ThedaCare claims in its lawsuit that “some patients may die.”

Cases like this are extremely rare. Matthew Collins, co-chair of Brach Eichler’s labor and employment practice, couldn’t conjure an example of another employer trying to force at-will employees to keep working there in the three decades he’s been practicing law.

Even more surprising, though, 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 they probably won’t win the case, he said.

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

“Some people would probably view the relief that ThedaCare was seeking was a form of indentured servitude,” he said, “basically forcing somebody to work not only at lesser pay, but at a location where they simply don’t want to work.”

For its part, Ascension denies poaching the employees. The Catholic system claims they applied for the public postings to work at its Appleton hospital the same way anyone would. Ascension’s sharpy worded response filed Jan. 24 said ThedaCare has “only itself to blame” for failing to maintain a competitive work environment, underpaying staff and refusing to match the offers from Ascension. Ascension said ThedaCare rejected multiple alternatives for retaining or replacing the employees, instead opting to “waste its money and everyone’s time on this frivolous lawsuit.”

“With this frantic, last-minute lawsuit, ThedaCare attempts to convert its own poor management into a disruptive personal emergency for everyone—anyone—but itself: Ascension, this Court, and (worst of all) seven essential health care workers who, until Friday, believed they were starting new jobs on Monday morning,” Ascension wrote in its filing.

The first radiology technician Ascension hired from ThedaCare was Kailey Young, who Ascension said applied through the normal process, received an offer with better pay and then told her colleagues, a close-knit group that “had become increasingly dissatisfied with ThedaCare’s management.”

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

After they received offers from Ascension, Breister said the group collectively asked ThedaCare on Dec. 21 for counter offers, which the health system declined to provide Dec. 28. The following day, the group collectively resigned, he said.

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

ThedaCare claims that if all seven employees leave, it won’t be able to treat all patients that need critical care, and will have to divert some as far away as Madison or Milwaukee, both of which are roughly 100 miles away.

ThedaCare said the COVID-19 pandemic has made diverting patients even more challenging because it’s triggered an unprecedented lack of capacity at hospitals. In Wisconsin, almost 92% of staffed hospital beds and 94% of staffed intensive care beds were occupied as of Jan. 19, the complaint said.

The pandemic has also made retaining adequate staffing, especially nurses, a nightmare for hospitals, as many quit for higher paying travel gigs and the rates for contract workers spike.

Ascension disputed ThedaCare’s claim that it will need to divert patients to Madison or Milwaukee. It said the seven employees in question, none of whom are physicians, will serve in the exact same roles at the 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 get their physicians from the same radiology practice.

Lynn Detterman, president of ThedaCare’s Neenah hospital, rejected that assertion in a separate court filing, writing that the Appleton hospital is a “Primary Stroke Center, not a Comprehensive Stroke Center.” The nearest Comprehensive Stroke Center is in Milwaukee, she said.

Detterman said that on Jan. 14, ThedaCare tried to convince the departing workers to continue their employment, but they couldn’t reach agreement. Several days later, her team met with Ascension leadership and asked for 90 days of access to one invasive radiological technician per day and one nurse with radiology training to give them time to find replacements. Ascension rejected the request.

In its own filing, Ascension criticized ThedaCare’s decision to wait until Jan. 18 to reach out to Ascension, when it had known of the potential departures since Dec. 21.

On Wednesday, Ascension said in a statement it was pleased with the court’s decision to dismiss the temporary restraining order preventing seven employees from beginning employment with Ascension Wisconsin.

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

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

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

“To actually force somebody to work against them will be the real challenge with the type of relief ThedaCare is seeking here,” he said.

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