Here & Now

Noon Wednesday: Why ThedaCare Sued a Competitor Over Staff

Marisa Wojcik:

Welcome to “Noon Wednesday.” I’m Marisa Wojcik, multimedia journalist for “Here and Now” on PBS Wisconsin. It’s January 26. Northeast Wisconsin health care system Thedacare filed for a temporary restraining order last week to try and prevent seven specialized health workers from starting new jobs at competing health system Ascension. Arguing the employees leaving during the covid-19 pandemic health crisis would risk the safety of patients. Now, this story has received national attention over the weekend as health systems continue to be overwhelmed by the pandemic and yet, our hemorrhaging workers who are quitting or finding better opportunities. So joining me to discuss her reporting on this is Madeline Heim, a health reporter for the “Appleton Post-Crescent” and the “USA Today” network and thank you so much for being here.

Madeline Heim:

Thank you so much for having me.

Marisa Wojcik:

Now, you received comment from Thedacare late last week, can you describe what they were arguing in issuing this temporary restraining order and what they told you?

Madeline Heim:

Yeah so Thedacare last Thursday filed for a temporary restraining order against Ascension which is the other hospital in Appleton for trying to — what they were arguing was trying to group recruit those seven employees away at once. In the complaint, they described it as coaching and those seven employees are part of an 11-member team that, like you said is specialized. They do interventional radiology which comes into play with trauma and stroke patients so Thedacare initially was arguing that, you know, not only did Ascension seek to take these workers away all at the same time which will leave them with only four out of 11 team members left on that team, but it also came, like you said, during a really stressful time for health care when, you know, everyone is looking for more workers. Everyone is losing workers. And so they had filed that temporary restraining order to ask the court to intervene and block those workers temporarily from leaving Thedacare or block them from starting at Ascension to give Thedacare enough time to find replacements.

Marisa Wojcik:

And as we know, many businesses, including health care, will require employees to sign contracts that include non-compete clauses. But in this case, these were at will employees meaning they had no contract, no obligation to stay with Thedacare or to prevent them from seeking employment even with a competitor. Is that correct?

Madeline Heim:

That is correct. They were all at will employees, they all were free to take jobs elsewhere and that is one thing that, you know, in the courtroom, Thedacare lawyers did say is, you know, we’re fine with them seeking jobs elsewhere. They took issue more with Ascension, you know, taking them all at once. But, you know, the interesting thing is that these employees all came upon the job postings from Ascension so Ascension had not — they argued they had not reached out and tried to take all these reporters at once, that, you know, it started with one employee who, you know, received an offer and liked the benefits and the pay. And then she told the rest of her team. And you know, it kind of went from there. So no, they were not under any contract and they were free to leave.

Marisa Wojcik:

Now, because of the urgency of Thedacare’s action on the surface, it appeared as if all of this was happening really suddenly but your reporting found that these employees actually gave plenty of notice to Thedacare and even an opportunity to counter Ascension’s offer, is that right?

Madeline Heim:

Yeah, that is. So in the court proceedings, we got kind of a detailed account of the timeline of this issue and the first employee who had applied for a job at Ascension was doing that work, you know, at the end of November, early December. And then on December 21st was when they had all actually received their offers and they took those offers to Thedacare and said, you know, would you be willing to match this? And Thedacare took about a week and then came back and, according to the employees, said no. Actually, the quote that was mentioned several times in the proceedings was that the short-term cost right now to Thedacare was not worth the long term expense of paying them more. So from that point forward, you know, they put in their resignation and then a couple of other nurses did the same thing and, yeah, it ended up being, you know, there were a few weeks in between when Thedacare had, you know, decided not to match the offer and when they filed the legal action. And they say that they, you know, tried to meet with Ascension and, you know, discuss a solution that wouldn’t have brought them to the courtroom but that ultimately did not work.

Marisa Wojcik:

Now, a county judge did initially grant the restraining order late last week. Why did he allow it? And did it hold?

Madeline Heim:

Yeah, so the judge Mark Mcginness heard that case. He signed that temporary restraining order right away on Friday or Thursday night. It was relatively soon after. And he said that he signed it because of the, you know, perceived grave danger to public safety that Thedacare alleged in their complaint and they were alleging that, you know, if we lose these team members all at once, there won’t be enough care in Fox Valley to care for stroke and trauma victims. So Mark Mcginniss said he thought that was pretty serious and wanted to get it on the calendar right away. He signed that restraining order not for the full 90 days that Thedacare had initially asked for the workers to not work at Ascension. He was aiming to have them wrap it up in a short amount of time over the weekend and so the workers could go to work on Monday. So he had signed it but asked the two parties to talk and try to come to a solution. Unfortunately, that did not happen so they were not able to go to work on Monday. They were all in the courtroom on Monday. However, that order was ultimately dismissed by the judge on Monday and they were able to report to work on Tuesday. So the larger case will keep going forward but the temporary restraining order was dismissed.

Marisa Wojcik:

And that gets to my next question. Where do things stand now and what does further action from either side look like? And you say the temporary restraining order is no longer in effect but there’s a larger case. What’s in the larger case?

Madeline Heim:

So it’s a little unclear at this point. Thedacare is going to try to argue that Ascension did something wrong in trying to take all those employees at once. And on Ascension’s end, they were group recruiting somehow and, you know, sought to take them all at once knowing that would kind of debilitate Thedacare’s team. We don’t know much about, you know, the specifics of when that is going to play out or even kind of what the legal remedy is to that. That all kind of remains to be seen. But, yeah, the employees were able to go to work so they are now Ascension employees and, you know, fair to get paid for their work now.

Marisa Wojcik:

I heard you use the phrase group recruiting a couple of times. Is that something in and of itself is illegal or actionable? Or are they just trying to argue more on the public health side? This is, as you said, debilitating Thedacare?

Madeline Heim:

Yeah, I’m not exactly sure. I am looking to speak with some legal experts in the next couple of days to kind of figure out exactly where the legal argument lies. But that public health component is really something that they are pushing, you know, they’re saying that in normal times, you know, employees switch between those systems all the time. We regularly see people going in both directions from both St. Elizabeth and Thedacare. But they’re basically saying that, you know, doing it during the pandemic when everyone is incredibly short staffed and, you know, just really, really hurting for work is, you know, especially kind of difficult and puts them in an especially difficult position.

Marisa Wojcik:

Now, have you, in your reporting, come across other cases like this that, you know, Thedacare might be able to point to or is this something that’s brand new?

Madeline Heim:

Yeah, I have not, although I don’t want to say that, you know, it’s never happened. I’m not exactly sure about that. I don’t think at least here in the Fox Valley we’ve seen anything like this. Again, I think it speaks to the stress of the pandemic and the stress of, you know, hospitals already being so short staffed and having to rely on, you know, things like traveling nurse agencies and things to get by. I think that’s really, you know, where this lawsuit is coming from because Thedacare and Ascension do have a reputation here, you know, for working together. And they’ve worked together through a lot of the pandemic and kind of shared services. And so this was, you know, at least from my vantage point, a little unprecedented because they do usually try to work together. But I think it’s just really indicative of, you know, of breaking point in that, you know, people are so, you know, looking for staff. It’s getting really challenging.

Marisa Wojcik:

It’s also kind of indicative of, you know, health care being in a business model, encapsulates this massive struggle between, as we’ve talked about, the health care shortage of employees across the board. Not even just highly specialized workers but nurses, too, in a public health crisis but crushing systems. And as you’ve said, you know, Thedacare was arguing that the short term cost doesn’t justify the long term cost and that’s also playing out with nurses as well. Nurses are asking for raises. They’re not getting it. And with that same argument and so they quit and become traveling nurses which pays a lot more money. And then systems, in turn, are willing to pay that much more money for a more short term contracted employee. And it seems like more and more of these, as you described it, breaking points are happening.

Madeline Heim:

Yeah, I think so. And one point that I really kind of wanted to make is that, you know, like you said, we have, you know, the situation that, you know, they said that the short term costs weren’t worth the long term expense. But now, they will be paying — the long term expense or, you know, the short term cost will be pretty high because now, they’ve got to pay other employees bonuses. Sometimes bonuses on top of bonuses to, you know, work extra shifts to cover these, you know, these open positions. They also mentioned in the court they have hired a vendor to come in and train some of their employees who do similar jobs but not quite the same. On how to do those specific roles, and that vendor was costing them $11,000. So, you know, the short term cost is going to end up being pretty high for Thedacare just because, you know, of the situation that the whole world, whole health care world is in right now.

Marisa Wojcik:

And not to mention, the legal expense of now a future battle, as you’ve described. So, you know, at the end of the day, health systems are a business. So could we see this possibly setting a new precedent, do you think potentially this could open the door for more cases like this to be happening as the breaking point continues to be, you know, reached every day across the country?

Madeline Heim:

Yeah, you know, I’m not really sure and I do hope to ask some of the legal experts that I’m talking to about that. But I think that, you know, we’ll definitely keep seeing the root of this issue which was that employees, you know, who had worked really hard wanted a better work/life balance and they, you know, decided to go get it instead of, you know, staying where they were, where they weren’t as happy. I do think that, you know, as you said, health care is a business and, you know, if it’s going to be run like a business, that’s going to keep happening and so, I think it remains to be seen whether or not, you know, health care companies will want to take that to court like Thedacare did. But I think the root of the issue is definitely going to keep happening. I think we’re definitely going to see that going forward.

Marisa Wojcik:

Well, it’s very interesting topic, and great reporting. If you want to see Madeline Heim’s reporting, it’s at the “Appleton Post-Crescent”, also part of the “USA Today” network. Madeline Heim, thank you so much for joining us.

Madeline Heim:

Thank you so much.

Marisa Wojcik:

For more from “Here & Now” and PBS Wisconsin, you can visit pbswisconsin.org/news. Thanks so much for joining us on “Noon Wednesday.”