Can the Wisconsin health care system win a lawsuit to prevent workers from being fired?

The Wisconsin health care system is unlikely to succeed in its unusual attempt to use the legal system to force a group of employees to continue working at its hospital instead of taking a new job with a competitor.

Seven employees of ThedaCare, a seven-hospital system based in Nina, Wisconsin, have joined Ascension Northeast Wisconsin, Ascension’s St. Louis division. In its lawsuit against Ascension Northeast Wisconsin, filed last week in Autagami County District Court, ThedaCare alleges that Ascension poached employees by undermining ThedaCare’s ability to deliver critical care.

On Monday, a judge dealt a major blow to ThedaCare’s case by overturning a Jan. 21 ruling that temporarily barred employees from leaving their jobs at Neenah ThedaCare’s flagship hospital and working in the same positions at Ascension Hospital less than seven miles away in Appleton, Wisconsin. . . January 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 the 11-member Interventional Radiology and Cardiovascular team that deals with serious cases such as injuries and strokes at ThedaCare Neenah Hospital. Without them, ThedaCare claims in its lawsuit that “some patients may die.”

Such cases are extremely rare. Matthew Collins, co-chair of Brach Eichler’s employment and employment practice, couldn’t imagine another employer trying to get volunteers to continue working there in the three decades he’s been practicing law.

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

While ThedaCare can make a strong case for patient safety, Collins said the concept of willing employment has been around since the late 1800s, when indentured slavery was effectively outlawed in the US.

“Some people would probably see the relief that ThedaCare was seeking as a form of indentured servitude,” he said, “basically forcing someone to work not only for less pay, but in a place they just don’t want to work.”

For its part, Ascension denies poaching employees. The Catholic system claims they applied for public publications to work at Appleton Hospital just like any other. Ascension’s sharply worded response, filed Jan. 24, says ThedaCare has “only itself to blame” for not maintaining a competitive work environment, underpaying staff, and refusing to match Ascension’s offerings. Ascension said ThedaCare rejected many alternatives to retain or replace employees, choosing instead to “waste their money and everyone’s time on this frivolous lawsuit.”

“Through this crazy last-minute lawsuit, ThedaCare is trying to turn its own mismanagement into a devastating personal emergency for everyone—anyone—except themselves: the Ascension, this court, and (worst of all) the seven key medical professionals who until Friday, they believed they would start new jobs on Monday morning,” Ascension said in a statement.

The first Radiology Technician hired by ThedaCare’s Ascension was Kaylee Young, who, according to Ascension, applied in the usual way, received an offer with higher pay, and then informed her colleagues, a tight-knit group that is “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 that one person received an “outstanding” offer, which in turn forced the rest to apply.

After they received offers from Ascension, Breister said the group collectively requested counter-offers from ThedaCare on Dec. 21, which the healthcare system refused to provide on Dec. 28. The group collectively resigned the next day, 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 injuries. It is designated as a Level II trauma center, the second largest trauma center. Tier II hospitals should have certain trauma services, including 24-hour interventional radiology.

ThedaCare claims that if all seven employees leave, it will not be able to treat all patients in need of intensive care, and some of them will even have to be sent to Madison or Milwaukee, which are about 100 miles away.

ThedaCare said the COVID-19 pandemic has made patient referrals even more difficult as it has caused an unprecedented shortage of hospital beds. The complaint states that in Wisconsin, as of January 19, almost 92% of staffed hospital beds and 94% of staffed intensive care beds were occupied.

The pandemic has also made retaining adequate staff, especially nurses, a nightmare for hospitals as many leave for better-paid travel and contract rates skyrocket.

Ascension disputed ThedaCare’s claim that it would need to refer patients to Madison or Milwaukee. It states that the seven said employees, none of whom are physicians, will perform the same functions at Appleton Hospital, a Level III trauma center. Ascension said its Appleton hospital offers the same medical services, “just without the fancy branding.” ThedaCare and Ascension have doctors from the same radiology practice.

Lynn Detterman, president of ThedaCare Neenah Hospital, denied that claim in a separate lawsuit, writing that 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 January 14, ThedaCare tried to convince the departing employees to continue working, but they were unable to reach an agreement. A few days later, her team met with Ascension management and requested 90 days of access to one invasive radiology specialist per day and one radiology trained nurse to give them time to find a replacement. Ascension denied the request.

In its own statement, Ascension criticized ThedaCare’s decision to wait until January 18 to contact Ascension when possible layoffs became known from December 21.

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

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

ThedaCare also shared a statement saying that its goal has always been to create a short-term orderly transition and not to force team members to continue working for ThedaCare.

Collins compared the incident 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 will not sue to force Brown to play football even if he violates his contract. In this case, ThedaCare employees did not violate any contracts or commit misconduct while looking for better paying jobs.

“Actually making someone work against their will is a real challenge with the kind of relief that ThedaCare is looking for here,” he said.