Wisconsin Judge Prevents Nurses from Going to New Employer

https://www.postcrescent.com/story/news/2022/01/21/what-we-know-ascension-thedacare-court-battle-over-employees/6607417001/

by lotsofpulp • 4 years ago

130 124 4 years ago

postcrescent.com

DamnYuppie2• 4 years ago

Can a lawyer please weigh in on this? I don't believe there is anyway this should be legal. I don't have to wait for my employer to find my replacement before I leave. This isn't the feudal system where we peasants are tied to the lords land.

Also if I were one of these employees I would simply not show up to the old employer, they can go f#ck themselves.

syki5• 4 years ago

I believe this ruling has to do with unfair competitive advantage. The employees are not prohibited from quitting or working elsewhere. The company attempting to hire the employees is prohibited from hiring the employees. It’s a temporary measure until the court system works out the legality of everything.

Imagine this scenario. There are two heart centers in a city. One of them decides to hire the doctors and nurses from the other heart center and does so and then massively increases prices. I’m not a lawyer but I think this sort of thing is not permitted (or desirable).

Ariarule• 4 years ago

The original article has so little information about what that case is actually about, it's stiking by its absence. There's discussion about motivations, but no real discussion about any relevant laws. It's like it's from a parallel universe where the entire concept of a legal system doesn't exist.

vsskanth5• 4 years ago

Imagine this scenario. There are two heart centers in a city. One of them decides to hire the doctors and nurses from the other heart center and does so and then massively increases prices. I’m not a lawyer but I think this sort of thing is not permitted (or desirable).

Would be nice to know what state or federal law doesn't allow this type of behavior.

oneoff7867• 4 years ago

That scenario doesn’t seem very sustainable. The other heart center can hire new doctors, or pay more wages or whatever. Does it really need legislation?

A4ET8a8uTh02• 4 years ago

My real question is what about the employees in all this? Do they not have grounds for reparations ( clear harm seems to be there ) here or since ThedaCare said they would not pay anyway, employees have no chance to prevail in court?

DamnYuppie2• 4 years ago

Why would this not be legal? I can offer as much or little money as I want to hire people. If I have deep pockets and can out pay for talent I will do so. There is nothing illegal or immoral about that.

jeasley12• 4 years ago

My feelings exactly!!

vsskanth5• 4 years ago

The assymetry of benefits granted by this injunction between the employer and employee is shocking here. The nurses are not allowed to work for the new employer but the current employer isn't required match compensation until the case is resolved.

This is on top of Wisconsin being an at-will state and there being no formal employment contract in this case. I'm not even sure how the judge is legally able to do this considering the material harm to employees.

There seems to be a lot of discussion on this at r/nursing

bko• 4 years ago

The nurses are not allowed to work for the new employer but the current employer isn't required match compensation until the case is resolved.

Who cares about matching compensation? This is about the right to end employment and seek employment elsewhere. Right to provide a living for yourself and your family is a fundamental human right. It's appalling that this wasn't thrown out of court immediately. I'm not a fan of non-compete clauses, but at least there is a voluntary contractual component.

In a broader sense, it's terrifying that this has even gotten so far and I fear it'll only get worse with more and more liberties being stripped away for [current emergency].

sjansen• 4 years ago

They’re not required to stay at the old employer, they’re just not allowed to start at the new employer. Cold comfort for anyone with bills to pay, but they aren’t being targeted by the decision, just the new employer. They’re free to go find a third employer. (Which is probably how the judge sleeps at night after putting so many people in an impossible situation.)

s1artibartfast3• 4 years ago

Context reminder, in an emergency the government can also conscript you to go die in a foreign war

raisim2• 4 years ago

I’m responding as a nurse. There has been tons of discussion about this situation amongst nurses all weekend long.

Over the past couple of decades, in the private sector employers have crafted the norm of at will employment. Then during the previous administration this at will idea found it's way into civilian federal service with the requirement that federal employees complete not one, but TWO years of new employee probation. This, all because, you know, employees are lazy and shiftless. The sole purpose of this "at will" employment trend has been to guard the interest of corporations.

Now dig this... In Wisconsin, it is not unusual for a new nurse, during onboarding, to be compelled to sign a form acknowledging that a FOUR week notice to quit is required in order to vacate a position. Then, buried deeper in the paperwork is a form that says that your employment is “at will.” So, they can fire a nurse on a dime, cause hey, "at will." But, the same nurse must give a 4 week notice to quit?

Also, there are certain healthcare organizations that, if a nurse does not work out their notice, or does not provide advanced notice to quit, the company will pay all unpaid hours at MINIMUM wage. I personally know of two nurses that had to go through the time, expense, and stress to hire an attorney who to press the issue and the organization in order to be paid what is actually owed.

Also, as a nurse, if one is to refuse an unsafe assignment, or speak up about an unsafe assignment, it is not uncommon to be threatened by administration to be reported to the board of nursing for patient abandonment. When really, how can you abandon patients that you have not taken responsibility for? But, who has the time, or energy, to die on that sword, especially when safe or not, there are sick patients that need care. Also, it is not uncommon for management, as they are punching out at 5pm, to compel nurses to hold over to cover staffing shortages. Again, threats of patient abandonment.

These things that I am describing are not one off situations. These things happen routinely. Nurses have been over worked prior to the pandemic. Then when the pandemic hit, we became overworked selfless heroes, working in trash bags. Now that the nation, all the world really, is experiencing pandemic fatigue, we are being referred to in the press as selfish and money hungry wenches abandoning facilities, leaving a wake of staffing shortages as we depart to become guns for hire to the highest bidder. Which, by the way is at will employment at it’s finest.

Now, the same corporations, who championed “at will” employment, treat nurses as an expense rather than a valuable finite resource and they have decided to spend money on legal fees rather than paying the extra $7/hr that the nurses were asking. The hospital would have retained their staff and we would not be having this discussion.

But, instead, they are seeking to set a precedence, that in dire situations, nurses ought not be able to quit their jobs. Under the guise of protecting patients that don’t even exist they are attempting to interrupt the these nurses ability to make a living and the nurses are not even their employees anymore. Capitalism at its best, Ascension healthcare, paying what the market demands in order to hire employees with valuable and rare skills.

This whole issue, to many of the nurses ai've talked to feels like Theada Care is trying extend the concept of compelling nurses to work, against their will, so future patients won’t be “abandoned.” They argued that the public at large would be at risk without the nurses being under their employment.

Theda Care raised the alarm asking "where will the poor public receive their care?” I’ll tell you where… Across the street at the other hospital. You know, the one that values their staff and pays a competitive wage.

Hospitals, I'm pretty sure, receive the exact same reimbursement from insurance whether they are staffed adequately or understaffed. If this is so, then hospitals actually profit when they are short staffed.

Finally, we live in an age of a pandemic and emergency orders, issued by governors, that are in some cases extremely broad. For instance in Wisconsin, under the emergency order, patients lost the right to sue for malpractice… Patients could not sue at all, this included for errors that occurre during the delivery of routine care or during the course of elective procedures. This was unnecessarily broad and extremely protective of corporate interests at the expense of regular citizens. Just one example of the broad strokes our covid emergency order was written in.

Finally, many commenters have raised the constitutional issues that are at stake in this situation. To most of us, these constitutional ideas exist in some ethereal space completely disconnected from our reality. They are important to us, but they seem like distant schoolhouse rock ideas. We don’t “see” constitutional questions, we feel oppressive working conditions that rob us of our ability to earn the living that we want, in the way we want. These conditions have robbed many of us of our soul...

SeNd HeLp pLeAsE

sleepingadmin• 4 years ago

I believe the quote means, the nurses who now can't work should continue receiving their usual pay from their former employer(the one filing the lawsuit). Without working. "Paid leave" or whatever.

In essence they are arguing these nurses have a non-compete, when they dont. As a judge I would approve this, disallowing the nurses from working for their new employer but also the old employer must keep paying them to sit at home. That'll put an end to these frivilous lawsuits quickly.

Natsu8• 4 years ago

It seems a bit more limited than some are reporting:

"On Friday, an Outagamie County judge ruled in favor of ThedaCare and issued this order:

“Make available to ThedaCare one invasive radiology technician and one registered nurse of the individuals resigning their employment with ThedaCare to join Ascension, with their support to include on-call responsibilities or;

“Cease the hiring of the individuals referenced until ThedaCare has hired adequate staff to replace the departing IRC team members.”"

https://www.wbay.com/2022/01/20/thedacare-seeks-court-order-...

itsdrewmiller• 4 years ago

It's also a temporary injunction that could be ended as soon as their Monday 10am next meeting. Still not really sure why they should be able to get an injunction at all though.

seibelj2• 4 years ago

Before everyone loses their minds that somehow this is the free market run amok, keep in mind that healthcare is one of the most regulated and government-involved industries not only in the USA but on earth.

For example, you can't even construct a new healthcare facility in most states unless a group of bureaucrats agrees there is a "need" for one https://www.investopedia.com/terms/c/certificate-of-need.asp

Here is an entrepreneurial doctor trying to add MRI machines to his practice, stymied by the glorious government of North Carolina https://www.vox.com/policy-and-politics/2018/7/31/17629526/m...

ethbr03• 4 years ago

To be fair, "I've just been in a car accident and require immediate stabilization followed by airlift to a Level I trauma center" is a process most of us don't think about.

There's nothing that says a Level I trauma center needs to exist... except planning (largely by states) to try and ensure it does. And a lot of ensuring availability means balancing profitability against access to the market.

A VC firm financing a facility across the street, until it loses interest and both implode financially, is of no good to anyone.

seibelj2• 4 years ago

My point is that before people go crazy about a judge not letting people quit, a judge also won’t let you work in this industry simply because you want to. It’s a highly regulated, government-interfered business so nurses being disallowed from jumping to another hospital is not surprising in the context of all the ways the market is managed.

novok• 4 years ago

I think there is a bit of a difference between "we have to make sure a level 1 trauma center exists" and "we will restrict people building more level 1 trauma centers indepedently", which is what I think the parent comment was implying.

bediger4000• 4 years ago

This is grotesquely anti-free market. Labor has to be able to pick and choose employers freely for a free market to work. This Judge is actively anti-capitalist.

I can only conclude that the Judge is a closet socialist, or worse, a communist.

diob11• 4 years ago

This is the actually the result of a free market. In the end, everything gets captured by whoever has the most capital / power.

Natsu8• 4 years ago

I think GP is talking about the ruling, not about people leaving for another employer.

yucky9• 4 years ago

I'm not OP but surely you don't think US healthcare is a free market, do you? It's probably the most regulated industry we have.

BooneJS• 4 years ago

At-will employment. I don’t see how anything outweighs that. Former employer didn’t want to raise salaries nor did they want to lose people. They chose to go to court instead. The traitorous 7?

ngngngng• 4 years ago

Can someone steelman this judges reasoning here for me? I just can’t see it. This seems like insanity to me in at at will state. The worst part is that the damage has already been done. Employees that would have left their job to find better work will now be terrified of this happening to them unless we make laws explicitly forbidding this.

It’s just like non competes. They’re mostly unenforceable but employers don’t want to risk someone trying to enforce it so they just won’t hire you.

afiori5• 4 years ago

Just reposting another comment: https://news.ycombinator.com/item?id=30040209

The point of the injunction isn't to come up with a perfectly fair solution. It's to prevent irreparable harm, as might be caused if the only level 2 trauma center in the area can no longer function. Any claims for compensation that the nurses have are still valid and can be settled later.

As someone whose only law training is watching law review channels on YouTube I agree.

Basically getting paid at the same rate rather than an increased rate is repairable harm (by paying money if the nurses win), forcing downtime at their clinic is not.

This assumes that the old employers have some kind of legal standing to make their victory at least plausible.

vsskanth5• 4 years ago

I don’t understand how encroaching on the civil liberties of citizens is legally allowed for keeping a medical center staffed (however necessary it is deemed to be).

For example, is it legal for a town to, let’s say, select 5 people and say they can only work as firemen for the local fire station and no one else is allowed to employ them because we absolutely need a fire station ?

daniel-thompson• 4 years ago

Basically getting paid at the same rate rather than an increased rate is repairable harm (by paying money if the nurses win), forcing downtime at their clinic is not.

There is "downtime" at the old place either way, since the nurses are not going to show up at the old hospital on Monday anyway. From the TFA:

That means the seven health care workers would not be working at either hospital on Monday.

s1artibartfast3• 4 years ago

Steal man/devils advocate here. The judge didn't make the law. They are just communicating it. If you don't like the outcome, vote for politicians that will change the law.

Note:I would have to see the court ruling to see what the basis in law is

SllX• 4 years ago

Can’t steelman an argument that isn’t in front of me, but it’s probably a unique decision to this case that relies on the following alleged facts: 1. Ascension Wisconsin poached 7 of ThedaCare’s staff in a short period of time that were all part of an 11 person team 2. ThedaCare-Neenah is the only Level II Trauma Center in Fox Valley and 3. the people on this team have a set of hard to replace skills that the people of Fox Valley depend on and 4. this is a temporary order, only sufficient time for ThedaCare to find replacements.

So the damage you’re worried about being done? I don’t want to discount the damage this might do to the 7 people who tried to change employers, but ThedaCare wants them to stay, working, which means getting paid, for that time, and this is unlikely to realistically affect anyone in a completely different industry and profession.

Was it a good or fair call by the judge? Hard to say, but the “this will set a new precedent” types of arguments against an order or decision rarely end up setting the kinds of sustainable precedents people imagine they could.

justin663• 4 years ago

Can someone steelman this judges reasoning here for me? I just can’t see it. This seems like insanity to me in at at will state.

I assume the judge believes that legislature's intent when making Wisconsin an at-will state was that this state of affairs would never protect individual employees and always be used to protect the interests of employers. I imagine he's right about that, too, although it's a disgusting thought and the employees will eventually prevail.

js2• 4 years ago

This judge is a piece of work:

https://urbanmilwaukee.com/2018/10/08/court-watch-42-days-in...

https://www.wjiinc.org/blog/outagamie-county-justice-the-fbo...

https://www.postcrescent.com/story/news/2018/12/20/reviewer-...

https://www.postcrescent.com/story/news/education/2018/12/11...

danhab99• 4 years ago

This guy is a menace

jleyank• 4 years ago

I don’t see what the problem is because the courts and government can’t get involved in private matters (vaccines, mandates). Conversely, the courts and governments can get involved in private matters (abortions, vaccines, mandates). It’s all perfectly clear - do what those in control want and everything will be fine.

Unfortunately, this isn’t really sarcasm anymore.

yorwba• 4 years ago

Found the case: https://wcca.wicourts.gov/caseDetail.html?caseNo=2022CV00006...

Unfortunately, seems like none of the documents are available for download.

pbourke• 4 years ago

Do the hospital executives of ThedaCare (the original employer) think this will improve their chances of recruiting anyone 2 years from now? Irrespective of the insanity of the ruling, it’s an abject failure of leadership to pursue this course in the first place.

candiodari• 4 years ago

If they can threaten a judge into doing this, they can threaten government to get people to work for them. Once you do this, where does it stop?

rdtwo• 4 years ago

Wow man that’s crazy. I thought you had to at least go to prison to become a slave in this country but I guess you can become hospital property too if you work for one.

supernova87a• 4 years ago

I hope this gets rapidly overturned/reviewed. I don't understand how one company can be granted an injunction against another for hiring people who have left that company (based on the claim that it would hurt the previous company).

I liken it to being able to sue your competitor for buying the last widget in the open market that you also needed to manufacture your product. In what way is that an enjoin-able action?

But maybe my legal understanding is poor.

882542F3884314B• 4 years ago

Interesting email from the ThedaCare CEO earlier this week.

https://reddit.com/r/nursing/comments/s8tdki/shots_fired_our...

oneoff7867• 4 years ago

After Slavery was outlawed in the US, southern states were quick to pass laws forbidding black people from changing employers until the growing season was over as a way to keep wages low and enact slavery lite.

This is an important right to protect.

stjohnswarts2• 4 years ago

Slavery is over but racism is not. Just look at the new Texas, Georgia, etc voting laws and redistricting which are all meant to discourage people of color from voting. Jim Crow 2.0

dontcare0072• 4 years ago

Yeah, how dare those states make voting more secure. My gosh, they even offer better voting than Delaware...

Seriously, read the laws, you are just spouting misinformation.

backtoyoujim• 4 years ago

Slavery is not over. The US has, like everything else, farmed it out to other nations.

stjohnswarts2• 4 years ago

I guess this judge didn't get the memo about indentured servitude being over by a couple centuries or so

gilrain• 4 years ago

It is the citizenry who missed the memo: one the parties in your two party system is trying to enslave you. Resist them.

justin663• 4 years ago

In case it is not obvious, ample evidence already exists that this judge is an idiot.

https://www.wjiinc.org/blog/outagamie-county-justice-the-fbo...

jbeaud• 4 years ago

None of those nurses can be compelled to work for ThedaCare by the court.

If I were any one of those employees, I would quit effective immediately and not work a day more in the old facility. It serves ThedaCare right! They made poor business decisions by declining to pay each of those employees fair compensation. Losing them is the consequence. Their case against Ascension will not hold water.

More American workers should take note and follow suit. Do not accept poor work conditions and low wages. Collectivize. Refuse to work for bad employers and take everybody else with you. This is our power to make change.

jeasley12• 4 years ago

There is a go fund me fund started for the 7 involved health care professionals. called "Thedacare Seven-ExEmployee Support fund." on the Go Fund Me website.

raisim2• 4 years ago

https://www.nytimes.com/2022/01/24/us/thedacare-lawsuit-wisc...

Judge reversed the ruling!!!

tiltmd2• 4 years ago

I would love to try passive resistance. Wearing scrubs stating "Thedacare supports communism", "indentured servant", "serf". Walking by the administrator's office repeatedly and calling him pinhead. Singing nursery tune over and over again. Putting post its with insult all over the admin staff's care. During my own down time, going by executive's houses with signs and chanting.

Or talk to the new hospital ask for 3 months and work for a 3rd company and then quit after 90 days.

Wisconsin Judge Prevents Nurses from Going to New Employer

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