On a side note, the temporary injunction from before was dissolved today after this finding.
This filing makes it very clear how this is entirely ThedaCare's fault, how ThedaCare blindsided both Ascension and the Court with their lawsuit, that ThedaCare has many other options to care for patients without leaving them out in the cold so there's no public interest grounds for the temporary injunction, and that they also have no legal grounds for blocking this recruitment.
This also seems to underscore the notion that a fish rots from the head: apparently ThedaCare's top management were in on this terrible decision. I know I wouldn't want to work there after reading this, so I won't be surprised if they get more resignations soon.
Note that you can probably give the benefit of the doubt to Ascension here on the factual claims simply because they (or their lawyer) could get in trouble with the court for lying, while they have little to gain in this case by doing so.
The most damning elements, such as Thedacare having revoked the former employees' accounts, not scheduling them and having refused to renegotiate the employment terms would be so easy to disprove that it's hard to see how they could be entirely made up.
You're not wrong, but the details on how they could hire outside contractors to save their certification and the details on how this won't harm actual patients--the only conceivable grounds for the temporary injunction as far as I'm concerned--coupled with the judge dismissing the injunction are things I find very persuasive.
Some of the details in there can also be cross-checked with other things, like that posting on r/nursing.
So you present a very good point that we can't take anyone's reply as gospel truth, but in this case, we do have significant corroboration for the points made in this.
The points I can actually verify are more than enough for me to say that ThedaCare is full of crap and deserves to go out of business. I know that I won't be patronizing them, given any reasonable choice in the matter.
I'd read in /r/nursing on Reddit that Thedacare management had months to find a solution to their problem, but for whatever reason kicked the can down the road until last week.
I wonder where the disconnect was? Department director/manager panicking and underplaying the situation to their bosses? Or upper management paralyzed by the thought of paying one department better and everyone else hearing about that?
I'm pretty sure it was a hardball negotiation tactic that failed. The employment market hasn't been as good as it is now since before 2008, a lot of assumptions would have been built in that time about how to negotiate with employees. Those assumptions clearly aren't valid any more.
The surprising thing is that a judge would go along with it, since his injunction, and by extension his office, is essentially being instrumentalized as part of a negotiation tactic.
I think a temporary injunction was reasonable given the severity of theracares claims. They said ascension did something illegal and as a result, lots of 3rd party individuals will die. Taking a weekend to review and weigh the arguments from each side is what I would want to do. Remember that judges are human too and need time to review the relevant laws and think
I see your point. On the other hand, if I was a judge, I think I would be incensed by Thedacare driving the situation right to the brink, then using the consequences of their terrible negotiating strategy on third parties as a way to force extra time.
Maybe the judge was incensed, but just not enough to risk killing 3rd parties as a "fuck you" to thedacare. Keep in mind that that at this stage, there is no evidence or fact finding. Either of these parties could be lying their face off in court. This will only be determined after years of lawsuit. Part of the judge's job when it comes to an injunction is to predict the future of a case that hasn't happened, and weigh it against the chance of irreparable harm and death today.
You can punish the litigants and disbar lawyers later, but you can't bring people back from the dead
He probably accepted their claims at face value and assumed they’d be somewhat based in truth, and their subsequent filing would have some reasonable logic that supported those claims.
Their new issue is that no judge will ever give them an ounce of leeway in the future.
I don’t know why a lawyer would trade their professional reputation in exchange for a lawsuit they know will lose, but good on thedacare for finding that idiot.
There’s no chance he wasn’t incensed - this case got media attention, and their strategy of dumping a case on him Friday, then lying to him - and asking him to accept those lies at face value - forced him to take a drastic measure which made him look like the asshole in said media attention.
The legal community isn’t that large, and fucking over a judge to score a meaningless win is a really fucking stupid idea. They’ve thrown their credibility out the window, and I doubt those lawyers will ever make a claim in that district without every single syllable being heavily scrutinized. That judge won’t forget about this, and neither will his colleagues. That’s besides the damage they did to their brand - suing your nearby competitor because they’ll give your staff massive pay increases is a master stroke of terrible marketing.
If I was a ThedaCare investor I’d absolutely be reading up on what the fiduciary duty of corporate officers are, because at a plain reading it seems they’re attempting to drive down the valuation.
>If I was a ThedaCare investor I’d absolutely be reading up on what the fiduciary duty of corporate officers are, because at a plain reading it seems they’re attempting to drive down the valuation.
ThedaCare is a not-for-profit, so they are probably more worried about profit than valuation
The brief from Ascension makes it clear that both they and the court were ambushed with last second filings claiming urgent harm to ThedaCare's patients. I can't blame the court too much for a bungled attempt to preserve the status quo that lasted for one weekend.
Yes, it appears that it may have cost some of those workers a day of working at Ascension, but that's one of many things that ThedaCare should be on the hook to pay for at this point.
I've read enough to see that ThedaCare's lawsuit is baseless and I fully expect it to get thrown out. ThedaCare is the one who should pay damages here.
It's absolutely mad that the temporary restraining order was even approved from the outset. No court should be able to compel people to keep working at a private employer on pain of contempt of court, in some perverted form of indentured servitude.
The TRO was an order to Ascension, not to the seven former employees of Thedacare.
It did not compel the seven former employees to continue working at Thedacare; instead, it blocked Ascension from hiring them until after Thedacare had hired their replacements.
Does this mean that the seven former employees of Thedacare didn't have to go back to work for Thedacare in the interim?
If that was the case, then why was the injunction granted in the first place? Was it due to some suspicion of anticompetitive behaviour? It doesn't seem that it was an attempt at helping the public keep their access to important medical care, which was the tune that Thedacare was playing for the press.
"Nothing that happens in the remainder of this case, regardless of the Court’s decision on this motion, can force those employees to return to ThedaCare to labor against their will. So the only equitable remedy available to the Court is an injunction prohibiting these employees from serving trauma patients at Ascension."
A case could be made for anticompetitive behaviour if a big company hired all the key personell from a small company in order to run them out of business so they wouldn't have to compete against them in the future. Especially if the big company overpaid for the employees, or had the intention of letting them go once the small company was bankrupt.
The TRO absolutely tried to require this, that at least some of those employees would be required to be available to Thedacare. Ascension pushed this heavily in their response - that this was akin to indentured servitude: resigning from an employer in an at-will state, only to have your employer "compel" you to not leave (be it directly, or through your new employer).
There was zero threat to access to medical care (which, still, is not the problem of those employees) - both hospitals shared the same radiologists, and some other staff. The same care was available to patients, just at a different hospital, a mere few miles away (and indeed, there's significant evidence to show that even Thedacare's ability to provide interventional radiology wasn't compromised, in that they did not transfer a single patient out of that hospital for IR care elsewhere in the entire timeframe).
That's not exactly correct, from what I understand the TRO was not put in place "until after Thedacare had hired replacements", it was put in place until the court could have a hearing. The court did, just a couple days later, and promptly removed the order.
They sort of had to issue it in the first place because Thedacare made a claim that grave harm could happen to the community. It turns out it was bullshit, but they had to hear them out to decide. (Note that I'm being charitable, not defending the principle of the thing.)
Not quite. One of the claims on the granted TRO was that Ascension "make 2 personnel available to Thedacare" for a similar timeline, until replacements had been hired.
That is insane. They were blocked from working at Ascension, but in addition, as employees of Ascension, two would have been required to keep working at an employer they had resigned from, until Thedacare had deigned to find replacements (and who knows how long that would take, as they have comprehensively destroyed a lot of their recruitability - significantly below market salaries, a competitor nearby who is willing to pay more, a willingness to make their employees pawns in a bigger game for corporate revenue, etc.).
> McGinnis had issued a temporary restraining order Friday that required Ascension to do one of two things: Either make available to ThedaCare one invasive radiology technician and one registered nurse from the departing team or cease hiring any of the employees until ThedaCare has hired adequate staff to replace them.
> IT IS FURTHER ORDERED that Defendant Ascension NE Wisconsin, Inc. shall either: 1. Make available to ThedaCare one invasive radiology technician and one
registered nurse of the individuals resigning their employment with ThedaCare to join Ascension (Amber Kohler, Andrew Kohler, Samantha Baltus, Timothy Breister, Kailey Young, Michael Preissner, and Paul Winter)
It went on to say essentially, "if you do keep them in your employment, they are available to ThedaCare, or you don't hire them".
Although if we're talking about the US even more so than any country on earth, the police and judicial system were precisely designed to keep slaves in check. So it's absolutely mad but absolutely aligned with stated/designed goals (see also the documentary about the 13th amendment *not* abolishing slavery).
Yes, this one. It explains perfectly why feel-good reforms aren't necessarily all good, and why even countries with strong social/workers protection like France have literally no working regulation in prisons. Around here you're "happy" if you can make 1€/h in prison (where everything is more expensive than one the outside), and any work-related accident will not be covered as "accident du travail" because human rights don't apply in prisons.
>That day, they provided the details of their offers to ThedaCare management and requested a counteroffer. They received no response until December 28, when they were told by Interim Director of Cardiovascular Service Line Ron Schumaker that ThedaCare would not be making any counteroffer. As he put it, the short term expense of retaining the radiology technologists was not worth the long term expense, because if ThedaCare paid to keep these employees, it would have to offer raises to everyone.
So they literally made the decision to not try to keep their staff because of $. Then made the decision to spend money in the lawsuit. But they also spent money going to the media which backfired on them. Afterall, everyone can see they were lying.
Management clearly not performing to satisfactory levels.
Now the cat is out of the bag, they will have spent a fortune on litigation, PR, and recruitment only to have to offer raises to anyone anyway. Whether they like it or not, they're on the record for not paying their staff enough and they'll surely be faced with more counter-offer situations.
'Penny-wise and pound-foolish' doesn't really carry the gravitas required to express the true enormity of leadership's stupidity on this one.
>'Penny-wise and pound-foolish' doesn't really carry the gravitas required to express the true enormity of leadership's stupidity on this one.
Very true. Mind you, this is the metric for Executive performance.
A nurse's metrics on performance would be treating and helping patients right. This is how the executives are measured. They are 100% certainly going to flamingly fail here.
Does it matter though? I imagine nobody knows the name of the CXO or the board members. They could simply rename thedacare to Meta or something, right?
I don't see how there is any justice here unless the CEO and the board go to prison.
> It said the broader case, in which ThedaCare argues that Ascension inappropriately group-recruited these employees, will go forward in court.
That is insanity. The lawyer working for this crazy company ThedaCare needs to be disbarred, responsible for taking this insane position/argument and wasting everyone's time and money.
The lawyer working for this crazy company ThedaCare needs to be disbarred, responsible for taking this insane position/argument and wasting everyone's time and money.
I don't know if it's the case in the US, but here in the UK if you bring a frivolous law suit it's very likely that you will not only lose but the cost of losing is that you have to pay all of the court costs, which includes paying the bills of the legal team of the person or company you sued. It's a very good way of deterring silly law suits. I would hope the same mechanism is available to the court in the US, and that Thedacare end up paying for their own lawyers, but Ascensions's lawyers too.
>I don't know if it's the case in the US, but here in the UK if you bring a frivolous law suit it's very likely that you will not only lose but the cost of losing is that you have to pay all of the court costs, which includes paying the bills of the legal team of the person or company you sued.
It is most assuredly NOT the way of things normally in the US. It's possible to sue for legal costs in some circumstances, but it's absolutely not a built-in feature of the legal system.
It's also a very good way of preventing a small entity from suing a large one for anything but a sure thing; since, if they lose, they could wind up on the hook for legal fees that are way out of their price range.
That's why german has standard rates for lawyers. You don't pay the other side's actual legal costs, you pay a standard rate of their legal costs. And since lawyers not on payroll are required to bill standard rate, your legal costs rarely exceed first court estimates (though you can ask for more if you had additional costs).
So... A privatized hospital, the epitome of US free market radicalism, is suing to prevent their workers from freely participating in the local work market?
Seems like a good summary of what "free" markets actually look like in practice and with what entitlement the people operate who benefit from them.
> So... A privatized hospital, the epitome of US free market radicalism, is suing to prevent their workers from freely participating in the local work market?
I guess the real mistake ThedaCare made was not monopolizing the local market. If all local medical services were handled under ThedaCare's roof, they wouldn't have to worry about this sort of competitive pressure. Sure they'd still need to worry about people leaving the local area for a new job, but that's enough to help suppress wages.
I'm sure that hospital system consolidation will continue make such legal embarrassment unnecessary in the future.
Healthcare is the most heavily regulated consumer oriented industry in the United States. This is a summary of the most heavily regulated consumer market in the country and a government abusing its regulatory authority to prevent workers from freely participating in the labor market.
Nothing about the healthcare market is a free market. Want to know how much your procedure is going to cost before you're expected to pay for it? No, price discovery/transparency is not a thing. Want to shop for the best price? Not possible. Want to switch healthcare providers? You'll need to change your job, and if you're not lucky enough to have employer sponsored/controlled healthcare, you'll have to wait until the new year.
You're a healthcare worker who's being mistreated/underpaid by your employer and you want to quit and get a better job on the "open" job market? The government won't let you do that.
> Healthcare is the most heavily regulated consumer oriented industry in the United States.
Did those regulations pertain to this labor dispute? If not then I think this is a strawman.
> a government abusing its regulatory authority to prevent workers from freely participating in the labor market.
and
> The government won't let you do that.
It wasn't the government that gave that ruling. Since as
bewaretheirs says in their comment elsewhere that ruling was vacated it was not even any law made by government that you can blame.
> Want to know how much your procedure is going to cost before you're expected to pay for it? No, price discovery/transparency is not a thing.
And that intransparency is something mandated by government? I'm asking, I don't know, it surprises me from what I know from just following discussions. The government prevents hospitals and MDs from disclosing their prices?
The US is not a free market, and very few people who run companies believe it should be (they say they do, but they don't in practise). Most business leaders want their company to have a government-protected monopoly. That's why there's so much lobbying.
My econ book has some quotes that basically say "competition is for losers" and that the goal for all companies is to be "lazy monopolists". Once a monopoly, they'll raise prices, but not by too much as to elicit public outcry or signal large companies to lobby for the removal of the monopoly.
They received a temporary restraining order up until today's hearing for the actual injunction to keep the employees until new ones could be hired. [1] The injunction itself was not granted thankfully.
Edit: I should have started with at least a source:
It's absurd that, in an at-will state, there was even a temporary restraining order. And there's no guarantee it would have been fixed so promptly without the national publicity this received.
Not everyone is rich enough that they can lose a week's wages - to say nothing of the legal costs involved.
ThedaCare's TRO was dissolved once it became clear that it wasn't going to protect any patients from ThedaCare's stupidity and they've already had to pay some damages to the affected employees per my understanding.
The seven ex-employees should sue ThedaCare and get punitive damage from ThedaCare. The punitive damage needs to be huge to send a message to any potential companies trying this trick again.
TL;DR if you're feeling out of the loop: last week, a hospital group in Wisconsin (Thedacare) successfully sued to stop 7 employees from quitting and going to another hospital (Ascension), essentially forcing them to keep working against their will. The PDF here lays out in painfully hilarious detail why the restraining order was bullshit, and it was duly overturned today.
The case brought by ThedaCare sought to prevent Ascension from HIRING these people. There's no portion of their claim that attempted to keep the 7 working at ThedaCare; they were just trying to keep them from working at Ascension.
There's no provision in WI law that would have allowed ThedaCare to argue these people couldn't leave their jobs. Now, it IS plainly obvious that they were hoping that, by closing this option, they'd continue to work for ThedaCare, but this is ridiculous thinking. Were I one of the 7, I'd work literally ANYWHERE ELSE before given ThedaCare another minute of my time after they pulled this.
The TRO filed by ThedaCare also included a clause that required Ascension to "make available" two of the seven at any time to ThedaCare, to continue providing care at ThedaCare, "until ThedaCare had replaced them", which I feel is going to be a long, slow process, given how thoroughly and comprehensively ThedaCare has trashed its already poor reputation in the nursing community.
That's literally indentured servitude. Those employees were being told not only that they couldn't work at an employer of their choosing, but that their resignation was moot - that a lawsuit, that to be clear, named them in no way, shape or form, was able to have as an outcome, be it a TRO, or final order, determining what employer they would work for.
It's really unclear by what mechanism they thought any of this would prevail. The attorneys who filed this mess should be sanctioned; it's serious "throw shit at the wall and hope it sticks" garbage.
The economic system forces the employees to work at some location. Their skill set and the timetable make A and B the only reasonable options. The injunction removed A as a possibility. Therefore, the injunction required them to work at B.
If an order, taken within the context of how the world works, leads to the employees being forced to work at ThedaCare, then it is an order forcing them to work at ThedaCare.
ThedaCare's TRO stated that "Ascension make 2 of the employees available to ThedaCare, until their replacements had been found". In other words, they wanted a court order that said that these people be required to work for an employer from whom they had resigned their employment.
Thedacare sued, successfully, in that they successfully initiated legal proceedings and are presently litigating their case. The verb sue means to initiate legal proceedings; it does not mean to prevail at such proceedings.
The plain meaning of the term "sued successfully" means you won the lawsuit. That didn't happen.
They got a (dubious!) injunction that did not last a single business day. That the judge granted said injunctions is INSANE on the face of it, but to say they "sued successfully" is incorrect.
> when they were told by Interim Director of Cardiovascular Service Line Ron Schumaker that ThedaCare would not be making any counteroffer. As he put it, the short term expense of retaining the radiology technologists was not worth the long term expense, because if ThedaCare paid to keep these employees, it would have to offer raises to everyone.
This filing makes it very clear how this is entirely ThedaCare's fault, how ThedaCare blindsided both Ascension and the Court with their lawsuit, that ThedaCare has many other options to care for patients without leaving them out in the cold so there's no public interest grounds for the temporary injunction, and that they also have no legal grounds for blocking this recruitment.
This also seems to underscore the notion that a fish rots from the head: apparently ThedaCare's top management were in on this terrible decision. I know I wouldn't want to work there after reading this, so I won't be surprised if they get more resignations soon.