Public Health

Court Bars Health Care Workers from Switching Jobs

A Wisconsin judge treats health care workers like serfs, legally tied to the workplace they'd like to leave.

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UPDATE: The order that was the subject of this story was rescinded by Judge Mark McGinnis in a hearing today after this story was filed. The original story follows:

Ascension, a health care company with locations in Wisconsin, recently hired seven workers specializing in interventional radiology and cardiovascular work. All of them used to work for the competing health care provider ThedaCare, and they represent a majority of the latter's formerly 11-member team.

Now ThedaCare is using the courts to stop the former employees from taking their chosen new jobs. Last week Outagamie County Circuit Court Judge Mark McGinnis insanely agreed to legally prevent these workers from starting their new jobs. None of these Americans were barred contractually from leaving the old job at will or from taking a new one.

The court's temporary restraining order stated that Ascension must "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."

The resource the judge insists that Ascension must "make available" is a group of human beings who did not choose to be made available to ThedaCare. ThedaCare has no argument based on contract or non-compete clauses for its brazen demand; it is merely declaring that its former employees' choice to go will harm it and, it insists, harm public health in the area. A further hearing on the matter is happening today.

Not that it should matter, but Ascension did no active poaching of the employees; one freely applied, preferred the offer, and word spread among the others. It's a choice they should of course be free to make.

ThedaCare insists that since it is the only Level II trauma and comprehensive stroke care operation in its area (stretching from Green Bay and Milwaukee), the loss of its ability to have 24/7 staff on call—at least until it is able to find people freely willing to accept its compensation package—could both threaten its accreditation and present health risks to the residents who might need its services.

Lynn Detterman, a senior vice president at ThedaCare, told WBAY that "it just really in the spirit of our community is harmed by this potentially so we just want to work collectively to ensure that does not happen"—by preventing American citizens from taking another job they prefer more.

In a statement provided to the Appleton, Wisconsin, Post-Crescent, Ascension wrote that "Workforce shortages are one of the many stresses healthcare systems have faced during this pandemic….Contrary to the allegations in the ThedaCare lawsuit, Ascension Wisconsin did not initiate the recruitment of the ThedaCare employees. Rather, the employees applied for open job postings….It is Ascension Wisconsin's understanding that ThedaCare had an opportunity but declined to make competitive counter offers to retain its former employees."

Indeed, one of the health care workers being unjustly treated as a serf, Timothy Breister, told Judge McGinnis that when he heard of a colleague getting an offer from Ascension better "not just in pay but also a better work/life balance," he also applied; when he asked ThedaCare for a counter-offer, he was told that "the long term expense to ThedaCare was not worth the short term cost."

This is, alas, the sort of thing that treating health care as a matter of public policy rather than free markets can lead to. Judge McGinnis' order offered no legal reasoning or precedent for his outrageous act. It is hard to imagine that one could be offered that meets constitutional muster.