Update: WI Judge Lifts Injunction That Attempted To Stop Employees From Quitting ThedaCare

Update 1/24/2022 at 4:00 pm PST

Following a hearing on Monday, Judge Mark McGinnis lifted the injunction - the 7 employees of ThedaCare are now free to work for Ascension Wisconson. The judge remarked, “Based upon the testimony, the exhibits that have come in that ThedaCare has not satisfied its burden, that it will likely suffer irrefutable harm without an injunction.”

A statement from an Ascension Wisconsin spokesperson after the ruling reads, “We are pleased with the court’s decision to dismiss the temporary restraining order preventing seven individuals from beginning employment with Ascension Wisconsin. We welcome our newest associates. We will continue to support our healthcare workers and staff and we thank them for their tireless dedication to providing high quality, compassionate care to our communities.”

Original story 1/21/22 at 9:00am EST

We’ve all heard about the staffing shortages among healthcare workers, but in Wisconsin, disputes over staffing have reached a new level, as ThedaCare has filed a lawsuit against another hospital in the area over alleged staff “poaching.”

In an interesting and possibly unprecedented (sorry for using that word, but it’s warranted, promise) situation, Wisconsin-based stroke center ThedaCare has taken steps for legal action against another area hospital, Ascension Wisconsin because 7 out of 11 staff members—made up of both technicians and nurses—from ThedaCare left their positions to take new opportunities at Ascension Wisconsin’s St. Elizabeth Hospital. 

According to reports from staff, the decision was made for better pay and work-life balance opportunities, but ThedaCare doesn’t see it that way—and has instead filed a lawsuit to try to keep the employees from leaving. 

What the Lawsuit Says

According to a local news station, the staff members were supposed to start their new jobs on Friday, Jan 21, but a restraining order issued against Ascension actually prevented it. The restraining order was issued by ThedaCare and it claimed that Ascension recruited the employees—a claim that the employees denied. Instead, their story is that one of them applied for a job at Ascension, received a great offer, and the word spread, leading to many other staff members applying for, and accepting, new positions. 

ThedaCare is the only Level III trauma and comprehensive stroke care unit in Fox Valley, so the lawsuit alleges that losing the workers could significantly impact patient care, specifically the ability to maintain 24/7 calls. A large part of the stroke center’s accreditation is its on-call status, so without the staff to maintain the ability to keep calls, the hospital is claiming their accreditation status is being put at risk.  

The news station also released the actual injunction issued by Judge Mark McGinnis that stipulated that not only does Ascension Wisconion have to cease hiring employees from ThedaCare, but they also have to continue to make at least one technician and one RN from the staff that quit available for on-call status at ThedaCare. In other words, it forces them to stay, at least in some capacity, at their old jobs:  

“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.”

According to another article about the situation, the workers have been blocked from starting their new positions, but not forced to go back to their old jobs, so they’re all currently temporarily not working as they await hearing results today. 

What About the Employees?

While the details of the lawsuit are interesting, to say the least, it begs the obvious question of: what about the employees? Does what they actually want matter? We’ve already seen how guidelines are forcing COVID-positive nurses to work because of staffing shortages and now, could it be possible that employers can sue to keep employees just because they’re in hardship without them? 

An op-ed in the LA Times pointed out how dangerous the injunction could be, because in addition to the current “at-will employment” that exists in our workplace—meaning employers can legally fire employees “at-will” anytime, for almost no reason at all—it also sets the precedent for employers having even more control over preventing employees from leaving of their own accord. Additionally, as in this case, at-will employment also means that the employees are free to leave their positions for any reason as well; unless, of course, a judge files restraining order against you. 

“In effect, [the McGinnis’ injunction] undermines the free market for worker skills by absolving ThedaCare of the need to counter Ascension’s offer,” writer Michael Hiltzik pointed out. 

And even the judge himself admitted the whole situation was less-than-ideal. “To me, that is a poor result for everyone involved,” he said, referring to the injunction. Ironically, the restraining order also didn’t actually help Theracare, because now the employees aren’t working at either healthcare facility under a new ruling is issued. 

On social media, nurses have expressed outrage over the situation. “SOMEONE PLEASE TELL ME HOW THIS JUDGE ALLOWED THIS?!?” wrote nurse Erica on Facebook. “What is happening???? healthcare is absolutely INSANE right now. instead of increasing pay, the hospital decides to take legal action against these nurses?? WOW ThedaCare… just wow. #nurseshavenorights #butwereheros.”

No matter what the outcome ends up being, the entire situation is one that has left a troubling taste in a lot of healthcare workers’ minds. It’s hard enough dealing with the guilt of leaving a healthcare position—as a former bedside nurse myself, I know the feeling that you are abandoning both staff and patients who need you—but we also know that the health of healthcare workers matters too. 

All healthcare workers deserve to work in a place where they feel healthy and supported and it should be up to them to decide where that is, not their employer and certainly not based on what an employer perceives as a threat to their own operations. 

This is a developing story and Nurse.org will update as soon as results from the hearing are available.