At-will for me, but not for thee
January 23, 2022 9:06 AM Subscribe
An injunction has been granted against seven health-care workers changing jobs. Several employees of Wisconsin's ThedaCare-Neenah hospital told their employer on dates between December 21 and January 7th of their intent to cease employment there and begin work at Ascension St. Elizabeth on January 24th, citing better working conditions and benefits as a primary motivator for their decision to change jobs. This Thursday, ThedaCare filed in court to block their former employees' new employment, and on Friday, Outagamie County Circuit Court Judge Mark McGinnis granted a preliminary injunction, preventing the seven health-care workers from working at Ascension pending resolution of the case.
McGinnis has been reprimanded previously for abusive truancy court practices and disproportionate contempt penalties,
McGinnis has been reprimanded previously for abusive truancy court practices and disproportionate contempt penalties,
One the one hand, this is BS...
On the other, what's going to happen to the patients under care when they leave??
On the third, anybody in such a critical position should be under solid employee union protections so these questions (almost) never come up.
posted by Heywood Mogroot III at 9:11 AM on January 23, 2022 [9 favorites]
On the other, what's going to happen to the patients under care when they leave??
On the third, anybody in such a critical position should be under solid employee union protections so these questions (almost) never come up.
posted by Heywood Mogroot III at 9:11 AM on January 23, 2022 [9 favorites]
There's a very easy way for ThedaCare-Neenah hospital to prevent employees from leaving en masse when a better opportunity comes along. Contracts.
But then ThedaCare-Neenah couldn't change working conditions, pay, or fire someone without cause.
At will for me, contractually bound for thee: this is the fantasy of every shitty employer. McGinnis should be removed from the bench and disbarred.
posted by tclark at 9:19 AM on January 23, 2022 [137 favorites]
But then ThedaCare-Neenah couldn't change working conditions, pay, or fire someone without cause.
At will for me, contractually bound for thee: this is the fantasy of every shitty employer. McGinnis should be removed from the bench and disbarred.
posted by tclark at 9:19 AM on January 23, 2022 [137 favorites]
Wait, so individual liberties can be constrained if larger community health needs are at stake?
Where was this judge two years ago?
*In all seriousness, this is a terrible ruling; if a hospital is offering services that require a higher level of skill and knowledge than other hospitals in the area, the workers absolutely should be better compensated for their unique competencies. The judge is rewarding the hospital’s mismanagement.
posted by Big Al 8000 at 9:21 AM on January 23, 2022 [42 favorites]
Where was this judge two years ago?
*In all seriousness, this is a terrible ruling; if a hospital is offering services that require a higher level of skill and knowledge than other hospitals in the area, the workers absolutely should be better compensated for their unique competencies. The judge is rewarding the hospital’s mismanagement.
posted by Big Al 8000 at 9:21 AM on January 23, 2022 [42 favorites]
Holy crap. How is this even a thing? ThedaCare had ample opportunity to match the offers and refused. The employees have the right to the better job. This is horrifying.
posted by Glinn at 9:21 AM on January 23, 2022 [29 favorites]
posted by Glinn at 9:21 AM on January 23, 2022 [29 favorites]
I have a hard time understanding whether the 18% of healthcare workers quitting are moving to new healthcare roles or leaving the field. Sounds like it's a mix?
posted by Emmy Rae at 9:22 AM on January 23, 2022 [2 favorites]
posted by Emmy Rae at 9:22 AM on January 23, 2022 [2 favorites]
Anyway this particular case is truly shocking. Very classic that Republicans would think a union where you have choices about your leadership and what demands you make of your employer are too restrictive, but some asshole with a little hammer can force you to work a job you've already quit.
posted by Emmy Rae at 9:24 AM on January 23, 2022 [23 favorites]
posted by Emmy Rae at 9:24 AM on January 23, 2022 [23 favorites]
They're not being forced to work a job they've already quit; they're being told they can't start their new job until the case is resolved. I'm sure ThedaCare's expectation is that if they can't start their new job, they'll keep working their old job because you know, money, but they can't actually enforce that.
While it looks to me like ThedaCare has absolutely no case here and should be laughed out of court, from reading the article it sounds to me like McGinnis is trying to play Solomon the Wise by threatening to cut the baby in half if the two hospitals can't reach an agreement:
McGinnis told lawyers for both health systems they should try to work out a temporary agreement by the end of the day Friday about the employees' status until Monday's hearing.
Otherwise, he said, the order prohibiting them from going to work at Ascension would be final until a further ruling was made. That means the seven health care workers would not be working at either hospital on Monday.
"To me, that is a poor result for everyone involved," McGinnis said.
So, it's not like McGinnis thinks the workers being stuck unable to work is just dandy; he's trying to play hardball to force one side or the other to back down.
Now, McGinnis does sound like a power-tripping egotistical asshole, from the other links in the OP (and pulling this kind of stunt absolutely fits with that profile IMO), but at the same time, getting mad at Solomon cuz Solomon threatened to chop a baby in half is missing the point of the exercise. The point of this ruling is simple: he's trying to motivate the hospitals to settle the case by Friday. If Friday rolls around and they still haven't reached an agreement, then we'll see how wise this judge actually is.
posted by mstokes650 at 9:45 AM on January 23, 2022 [15 favorites]
While it looks to me like ThedaCare has absolutely no case here and should be laughed out of court, from reading the article it sounds to me like McGinnis is trying to play Solomon the Wise by threatening to cut the baby in half if the two hospitals can't reach an agreement:
McGinnis told lawyers for both health systems they should try to work out a temporary agreement by the end of the day Friday about the employees' status until Monday's hearing.
Otherwise, he said, the order prohibiting them from going to work at Ascension would be final until a further ruling was made. That means the seven health care workers would not be working at either hospital on Monday.
"To me, that is a poor result for everyone involved," McGinnis said.
So, it's not like McGinnis thinks the workers being stuck unable to work is just dandy; he's trying to play hardball to force one side or the other to back down.
Now, McGinnis does sound like a power-tripping egotistical asshole, from the other links in the OP (and pulling this kind of stunt absolutely fits with that profile IMO), but at the same time, getting mad at Solomon cuz Solomon threatened to chop a baby in half is missing the point of the exercise. The point of this ruling is simple: he's trying to motivate the hospitals to settle the case by Friday. If Friday rolls around and they still haven't reached an agreement, then we'll see how wise this judge actually is.
posted by mstokes650 at 9:45 AM on January 23, 2022 [15 favorites]
on Friday, Outagamie County Circuit Court Judge Mark McGinnis granted a preliminary injunction
I know I'm not the only person who misread the county name the first time through. I might be the only one who thought "nominative determinism strikes again."
posted by Mayor West at 9:50 AM on January 23, 2022 [1 favorite]
I know I'm not the only person who misread the county name the first time through. I might be the only one who thought "nominative determinism strikes again."
posted by Mayor West at 9:50 AM on January 23, 2022 [1 favorite]
So, it's not like McGinnis thinks the nurses being stuck unable to work is just dandy; he's trying to play hardball to force one side or the other to back down.
Actually, I think he does, and his "poor result" remark is a fig leaf. At will employment means that any judge who rules on the basis of the principle of "At Will" employment would have told ThedaCare "if you want them to keep working for you, make an offer they accept." But he didn't. He told the employees they can literally do nothing and earn no pay because ThedaCare didn't want to match better offers.
There's no ambiguity here, there are no nuances. Employment is either at will, or it isn't. If it isn't, then the employees should enjoy the protection of contracts that neither party can unilaterally change.
posted by tclark at 9:51 AM on January 23, 2022 [85 favorites]
Actually, I think he does, and his "poor result" remark is a fig leaf. At will employment means that any judge who rules on the basis of the principle of "At Will" employment would have told ThedaCare "if you want them to keep working for you, make an offer they accept." But he didn't. He told the employees they can literally do nothing and earn no pay because ThedaCare didn't want to match better offers.
There's no ambiguity here, there are no nuances. Employment is either at will, or it isn't. If it isn't, then the employees should enjoy the protection of contracts that neither party can unilaterally change.
posted by tclark at 9:51 AM on January 23, 2022 [85 favorites]
Can anyone help me understand the legal basis for the injunction request? What’s the hospital’s argument? What law, principle, or precedent are they citing? Do they have any grounds for getting courts involved, even if they’re shaky?
posted by evidenceofabsence at 9:52 AM on January 23, 2022 [10 favorites]
posted by evidenceofabsence at 9:52 AM on January 23, 2022 [10 favorites]
Those are good clarifications, mstokes650.
The point of this ruling is simple: he's trying to motivate the hospitals to settle the case by Friday. This really reinforces to me the power systems at play here - it's not about the workers' decisions at all. Management is to work it out over their heads.
posted by Emmy Rae at 9:53 AM on January 23, 2022 [11 favorites]
The point of this ruling is simple: he's trying to motivate the hospitals to settle the case by Friday. This really reinforces to me the power systems at play here - it's not about the workers' decisions at all. Management is to work it out over their heads.
posted by Emmy Rae at 9:53 AM on January 23, 2022 [11 favorites]
The hospitals don't need to settle the case. This isn't a contract dispute between them. "Poaching" isn't an actionable legal offense, nor does it apply to these medical professionals' right to work wherever they they want. This Solomon has his head up his ass.
posted by PhineasGage at 9:53 AM on January 23, 2022 [72 favorites]
posted by PhineasGage at 9:53 AM on January 23, 2022 [72 favorites]
I hope the seven affected employees lean HARD into their new role as indentured servants who are beholden to their employers no matter what. If the legal system told me I was obligated to remain working for my terrible employer no matter what, I would immediately read into that a reciprocal obligation from the employer. What's more, since I already had a new job lined up, I would go full George-Costanza-trying-to-get-fired-by-dragging-the-Mets-championship-trophy-around-the-parking-lot-behind-his-car. Make it so uncomfortable for your employer that they have no choice but to terminate your employment. Ideally, take half the remaining staff with you. Show 'em how the world actually works.
posted by Mayor West at 9:54 AM on January 23, 2022 [21 favorites]
posted by Mayor West at 9:54 AM on January 23, 2022 [21 favorites]
I remember way back in the early 2000s reading some news story about representative Eric Cantor (or similar, one of the early 2000s Republican ghouls anyway) coming out against OSHA or some kind of well established workers' rights regulation that at the time seemed untouchable and beyond up for debate. I remember it dawning on me then as a young kid that the Republican party (and, to be sure, more than a handful of Democrats) actually and truly wanted a return to full on serfdom or slavery. Like, not metaphorical serfdom, but an actual full-on bending and scraping kind of human suffering experienced by vast numbers of people for their own personal benefit. Not the impersonal kind of injury caused by economic and social negligence, but the an actual intentional diminishment and degradation of human life for their own enrichment and amusement.
Blew my young mind then and even though I should be used to it given everything that's unfolded over the last 20 years, it continues to blow my mind now. This situation with the hospital just feels like another sign that the water in this pot is getting really really hot and maybe we should all do something like jump out or something?
posted by flamk at 9:56 AM on January 23, 2022 [51 favorites]
Blew my young mind then and even though I should be used to it given everything that's unfolded over the last 20 years, it continues to blow my mind now. This situation with the hospital just feels like another sign that the water in this pot is getting really really hot and maybe we should all do something like jump out or something?
posted by flamk at 9:56 AM on January 23, 2022 [51 favorites]
A side note: they aren't being mandated to continue working for ThedaCare (if they were, then, terrible as such an argument would be, there'd be some sort of exigent-need essential-worker justification to be made). They are merely being mandated to not work for Ascension.
posted by jackbishop at 9:59 AM on January 23, 2022 [3 favorites]
posted by jackbishop at 9:59 AM on January 23, 2022 [3 favorites]
Solomon was a king. This guy is a judge, not an absolute ruler, and he is ostensibly supposed to be working within the bounds of the law. It sounds like he issued the injunction on Friday morning and set a hearing for Monday, thinking he could coerce the hospitals into sorting it all out in their off hours over the weekend. That’s a ridiculous thing to assume, especially when the burden of the injunction falls on the employees who have done nothing wrong, not on the institutions that are being called on to act.
posted by evidenceofabsence at 10:01 AM on January 23, 2022 [19 favorites]
posted by evidenceofabsence at 10:01 AM on January 23, 2022 [19 favorites]
Mayor West, I've read somewhere that nurses often fear using these kinds of work slowdown tactics as the hospitals can and will file complaints with the state nursing boards alleging patient neglect and getting their licenses suspended/revoked/ etc. Of course there is no equivalent board (at least none with any equivalent effectiveness) to appeal to for complaints against individual hospital administrators.
For any nurses reading this, is this actually true?
posted by flamk at 10:03 AM on January 23, 2022 [6 favorites]
For any nurses reading this, is this actually true?
posted by flamk at 10:03 AM on January 23, 2022 [6 favorites]
I had a long post written but to sum it up, this is terrifing.
posted by AlexiaSky at 10:10 AM on January 23, 2022 [9 favorites]
posted by AlexiaSky at 10:10 AM on January 23, 2022 [9 favorites]
getting mad at Solomon cuz Solomon threatened to chop a baby in half is missing the point of the exercise.
The point of the Judgement of Solomon was that neither side could reasonably be determined to be correct. That's not true in this case. I'm not sure why you think the new hospital or employees should have to back down on anything here.
posted by Candleman at 10:14 AM on January 23, 2022 [30 favorites]
The point of the Judgement of Solomon was that neither side could reasonably be determined to be correct. That's not true in this case. I'm not sure why you think the new hospital or employees should have to back down on anything here.
posted by Candleman at 10:14 AM on January 23, 2022 [30 favorites]
The hospitals don't need to settle the case.
"The case" is literally ThedaCare taking Ascension to court. You may not think ThedaCare has a good case (and I agree!) but that is literally who is suing who, and yes, the parties to a case are the ones that need to settle the case, if there's going to be a settlement.
Can anyone help me understand the legal basis for the injunction request? What’s the hospital’s argument? What law, principle, or precedent are they citing? Do they have any grounds for getting courts involved, even if they’re shaky?
Haven't been able to find the filing itself, but from the statements made by their lawyers it seems to be something along the lines of "the pandemic is placing unprecedented strain on the health care system, patients will die without these staffers, etc. etc." (with some additional side elements I don't totally follow but which seem to amount to healthcare-administrator-speak for "our hospital is more important than their hospital") which all seems like great reasons to offer your employees more money to stay and lousy reasons to sue. But at the same time I can see how invoking the specter of "patients will DIE if you rule against us!!" might spook a judge into wanting the case to get settled, instead of having to rule on it.
I'm not sure why you think the new hospital or employees should have to back down on anything here.
I'm not sure why my effort to explain why the judge is doing what the judge is doing is being taken as an endorsement of the judge's actions, despite me repeatedly saying that I do not think ThedaCare has a good case, but this is exactly the kind of bad-faith, putting-words-in-other-peoples'-mouths bullshit that makes this website awful.
posted by mstokes650 at 10:19 AM on January 23, 2022 [44 favorites]
"The case" is literally ThedaCare taking Ascension to court. You may not think ThedaCare has a good case (and I agree!) but that is literally who is suing who, and yes, the parties to a case are the ones that need to settle the case, if there's going to be a settlement.
Can anyone help me understand the legal basis for the injunction request? What’s the hospital’s argument? What law, principle, or precedent are they citing? Do they have any grounds for getting courts involved, even if they’re shaky?
Haven't been able to find the filing itself, but from the statements made by their lawyers it seems to be something along the lines of "the pandemic is placing unprecedented strain on the health care system, patients will die without these staffers, etc. etc." (with some additional side elements I don't totally follow but which seem to amount to healthcare-administrator-speak for "our hospital is more important than their hospital") which all seems like great reasons to offer your employees more money to stay and lousy reasons to sue. But at the same time I can see how invoking the specter of "patients will DIE if you rule against us!!" might spook a judge into wanting the case to get settled, instead of having to rule on it.
I'm not sure why you think the new hospital or employees should have to back down on anything here.
I'm not sure why my effort to explain why the judge is doing what the judge is doing is being taken as an endorsement of the judge's actions, despite me repeatedly saying that I do not think ThedaCare has a good case, but this is exactly the kind of bad-faith, putting-words-in-other-peoples'-mouths bullshit that makes this website awful.
posted by mstokes650 at 10:19 AM on January 23, 2022 [44 favorites]
I could see an argument for foul play if the employees hadn't given plenty of notice and even given their previous employer an opportunity to match the offer. That isn't what happened, though. ThedaCare had the opportunity to keep these people and had more than a couple of weeks to do something before they ran into court just as the clock ran out.
Maybe they should consider hiring managers who can see the big picture rather than shortsighted assholes. Then they wouldn't be in this position.
posted by wierdo at 10:23 AM on January 23, 2022 [5 favorites]
Maybe they should consider hiring managers who can see the big picture rather than shortsighted assholes. Then they wouldn't be in this position.
posted by wierdo at 10:23 AM on January 23, 2022 [5 favorites]
It seems this judge has his head up his ass. But there’s no ambiguity here, there are no nuances is always bullshit and primarily serves to shut down conversation (well and make the righteous feel even more right!)
posted by wemayfreeze at 10:24 AM on January 23, 2022 [8 favorites]
posted by wemayfreeze at 10:24 AM on January 23, 2022 [8 favorites]
But I mean why is this a case at all. In a sane world it'd be obvious that the first hospital made their bed & now they have to lay in it, end of story. This will create a really horrible precedent for everyone.
posted by bleep at 10:26 AM on January 23, 2022 [11 favorites]
posted by bleep at 10:26 AM on January 23, 2022 [11 favorites]
Companies shouldn't have more rights than people but that's what they're speaking into reality right now & it's not good for anyone.
posted by bleep at 10:29 AM on January 23, 2022 [13 favorites]
posted by bleep at 10:29 AM on January 23, 2022 [13 favorites]
Can anyone help me understand the legal basis for the injunction request?
I don't see that there is any. Even the argument about medical needs doesn't hold up to me. It's not as if the workers are going to be go be gardeners, for instance.
posted by NotLost at 10:31 AM on January 23, 2022 [6 favorites]
I don't see that there is any. Even the argument about medical needs doesn't hold up to me. It's not as if the workers are going to be go be gardeners, for instance.
posted by NotLost at 10:31 AM on January 23, 2022 [6 favorites]
The point of this ruling is simple: he's trying to motivate the hospitals to settle the case by Friday.
>The hospitals don't need to settle the case. This isn't a contract dispute between them.
Besides that, I also don't see what motivation this gives for the original hospital to settle anything. If he'd ruled that the original hospital needs to keep paying the workers as long as they're not allowed to start their new jobs, that at least would make some sense, and be fair towards the employees. As it stands, unless I'm missing something, it seems like they can just fuck over everyone and use the employees as a bad example for as long as they want.
(This would be an appropriate time for the hospital's other employees to show some solidarity.)
that is literally who is suing who, and yes, the parties to a case are the ones that need to settle the case, if there's going to be a settlement
I'm not well versed in the legal system, but if I sue* you, then us settling is one option, but the judge settling the case is the other option, right? Given that the suit/injunction seems spurious, why should a hospital being dragged into a spurious case have to settle that case instead of the judge throwing it out? It seems like the second hospital would have a decent case against the first hospital, if it wanted to sue them for obstructing its operation or something along those lines. And it seems like the employees would have a decent case against the original for obstructing their ability to earn a living. At the very minimum, the original hospital should be held responsible for paying the wages it's caused these employees to miss out on, and if the "settlement" involves them going back to work at the original hospital for some period, it should pay them whatever they would have been earning at the new hospital.
Is there a legal term for situations like these, where two entities are the legal parties in a dispute, but there's a third, apparently unrepresented party (in this case, the employees) that is significantly affected?
*Is this actually a law suit? This and some other articles I see are just saying that the old hospital filed an injunction, not a suit, but I don't know how accurate the coverage is and don't have time to look into it more deeply.
posted by trig at 10:35 AM on January 23, 2022 [9 favorites]
>The hospitals don't need to settle the case. This isn't a contract dispute between them.
Besides that, I also don't see what motivation this gives for the original hospital to settle anything. If he'd ruled that the original hospital needs to keep paying the workers as long as they're not allowed to start their new jobs, that at least would make some sense, and be fair towards the employees. As it stands, unless I'm missing something, it seems like they can just fuck over everyone and use the employees as a bad example for as long as they want.
(This would be an appropriate time for the hospital's other employees to show some solidarity.)
that is literally who is suing who, and yes, the parties to a case are the ones that need to settle the case, if there's going to be a settlement
I'm not well versed in the legal system, but if I sue* you, then us settling is one option, but the judge settling the case is the other option, right? Given that the suit/injunction seems spurious, why should a hospital being dragged into a spurious case have to settle that case instead of the judge throwing it out? It seems like the second hospital would have a decent case against the first hospital, if it wanted to sue them for obstructing its operation or something along those lines. And it seems like the employees would have a decent case against the original for obstructing their ability to earn a living. At the very minimum, the original hospital should be held responsible for paying the wages it's caused these employees to miss out on, and if the "settlement" involves them going back to work at the original hospital for some period, it should pay them whatever they would have been earning at the new hospital.
Is there a legal term for situations like these, where two entities are the legal parties in a dispute, but there's a third, apparently unrepresented party (in this case, the employees) that is significantly affected?
*Is this actually a law suit? This and some other articles I see are just saying that the old hospital filed an injunction, not a suit, but I don't know how accurate the coverage is and don't have time to look into it more deeply.
posted by trig at 10:35 AM on January 23, 2022 [9 favorites]
I want to make a joke about "activist judge!" here but...it's not a joke. Shouldn't he have thrown out the case, if he want to do right by the seven nurses?
posted by wenestvedt at 10:36 AM on January 23, 2022 [3 favorites]
posted by wenestvedt at 10:36 AM on January 23, 2022 [3 favorites]
So the judge is trying to force the hospitals to illegally collude over wages and hiring decisions? Do I have that right?
posted by sjswitzer at 10:42 AM on January 23, 2022 [75 favorites]
posted by sjswitzer at 10:42 AM on January 23, 2022 [75 favorites]
Yes it seems that way! If people are getting a little testy in here I think it's just because we're watching our human rights being marched away one by one and it doesn't feel good.
posted by bleep at 10:46 AM on January 23, 2022 [50 favorites]
posted by bleep at 10:46 AM on January 23, 2022 [50 favorites]
the parties to a case are the ones that need to settle the case, if there's going to be a settlement
You have a very strange sense of what's going on here. The judge could certainly have refused to issue the preliminary injunction and simply let the case play out. You may not be acting like ThedaCare has a case, but you *are* acting like a settlement is necessary. It's not.
posted by Galvanic at 10:55 AM on January 23, 2022 [14 favorites]
You have a very strange sense of what's going on here. The judge could certainly have refused to issue the preliminary injunction and simply let the case play out. You may not be acting like ThedaCare has a case, but you *are* acting like a settlement is necessary. It's not.
posted by Galvanic at 10:55 AM on January 23, 2022 [14 favorites]
when i was younger and radicals told me (paraphrasing) law is a tool the powerful use to control the powerless, that its nomial rules and logic are a smokescreen, that it will be over backwards and speak out both sides of its mouth and invent or break any principle to get the result the powerful want.... well, i was unpersuaded.
7 nurses are being blacklisted from employement during a pandemic because they offended their employer and the court with the outrage of seeking better pay and following the dictum trotted out by antiregulation free market choirs "if you dont like it, work somewhere else".
Your bosses own you, you have the freedom to starve, your bosses will buy and sell you, you should shut up and hope they are merciful.
"oh, we had to use the nurses as hostages to get the employers to negotiate" no. you choose to take them as hostages.
posted by anecdotal_grand_theory at 10:58 AM on January 23, 2022 [94 favorites]
7 nurses are being blacklisted from employement during a pandemic because they offended their employer and the court with the outrage of seeking better pay and following the dictum trotted out by antiregulation free market choirs "if you dont like it, work somewhere else".
Your bosses own you, you have the freedom to starve, your bosses will buy and sell you, you should shut up and hope they are merciful.
"oh, we had to use the nurses as hostages to get the employers to negotiate" no. you choose to take them as hostages.
posted by anecdotal_grand_theory at 10:58 AM on January 23, 2022 [94 favorites]
In case anyone’s interested, on the Reddit side of things, there’s a GoFundMe set up to help support the staff who’ve been enjoined from taking their new jobs at Ascension. They’re not able to be paid there, and it seems that Thedacare is hoping to bully them into staying.
posted by freshwater at 10:59 AM on January 23, 2022 [15 favorites]
posted by freshwater at 10:59 AM on January 23, 2022 [15 favorites]
found it : "Law is Violence Masquerading as Virtue" -Hector Sanchez Letters to my Assasins
posted by anecdotal_grand_theory at 11:03 AM on January 23, 2022 [10 favorites]
posted by anecdotal_grand_theory at 11:03 AM on January 23, 2022 [10 favorites]
mstokes650: but at the same time, getting mad at Solomon cuz Solomon threatened to chop a baby in half is missing the point of the exercise.
Well, I would argue getting mad at Salomon is exactly the point. I know people like thinking of Salomon as very wise and all that, but look at the facts: he proposed cutting a child in half. This is not a good thing! You should never do that, ever! Chopping babies in half: not good.
What really happens here is that Salomon, like this judge, refuses to do his job, which is to make a decision. Letting the mothers (c.q. hospitals) sort the matter out by themselves is walking away from justice. Not good. Not very wise.
Also, the baby in question is the kingdom of Israel, which did get divided in two kingdoms after Salomon’s death – something for which Salomon maybe could have made better arrangements. But alas, he was as bad a king as he was a judge.
posted by trotz dem alten drachen at 11:09 AM on January 23, 2022 [15 favorites]
Well, I would argue getting mad at Salomon is exactly the point. I know people like thinking of Salomon as very wise and all that, but look at the facts: he proposed cutting a child in half. This is not a good thing! You should never do that, ever! Chopping babies in half: not good.
What really happens here is that Salomon, like this judge, refuses to do his job, which is to make a decision. Letting the mothers (c.q. hospitals) sort the matter out by themselves is walking away from justice. Not good. Not very wise.
Also, the baby in question is the kingdom of Israel, which did get divided in two kingdoms after Salomon’s death – something for which Salomon maybe could have made better arrangements. But alas, he was as bad a king as he was a judge.
posted by trotz dem alten drachen at 11:09 AM on January 23, 2022 [15 favorites]
Legal experts here on MetaFilter: I genuinely want to understand more about the legal basis for this injunction and what it portends for other "essential worker"-categorized workers, and for labor rights in organizing and striking. Is this a precedent that meatpackers, telcos, and school boards will use to try to keep workers from seeking other jobs, or is it more specific to healthcare workers? Based on "to protect the community's ongoing access to Level II Trauma and Comprehensive Stroke Care we provide" wording in this letter, I presume this is maybe more likely to be a precedent for people who provide services to a specific geographic area, so, maybe electricians at a utility company but not farmworkers?
I promise that if you speak up in this thread to explain further, I personally will not assume that you are on board with the injunction, and I hope most participants won't either.
I checked out what Cassie Alexander had to say and her rueful comment is: "I keep joking about hospitals chaining us to the beds to work, and wouldn't you know it...." If you can stand it, Year of the Nurse, her memoir of working as a nurse for the first year and a half of the pandemic, is incisive and edifying.
posted by brainwane at 11:09 AM on January 23, 2022 [22 favorites]
I promise that if you speak up in this thread to explain further, I personally will not assume that you are on board with the injunction, and I hope most participants won't either.
I checked out what Cassie Alexander had to say and her rueful comment is: "I keep joking about hospitals chaining us to the beds to work, and wouldn't you know it...." If you can stand it, Year of the Nurse, her memoir of working as a nurse for the first year and a half of the pandemic, is incisive and edifying.
posted by brainwane at 11:09 AM on January 23, 2022 [22 favorites]
A truly bizarre part of this is that preliminary injunctions should be granted only if (among other reasons) it appears likely that the plaintiff will win. There’s no basis to think that, as everyone in America has already noted.
posted by kerf at 11:19 AM on January 23, 2022 [23 favorites]
posted by kerf at 11:19 AM on January 23, 2022 [23 favorites]
(Solomon tangent: the story is not that he set up a baby-chopping threat to pressure the parties to settle -- the story is it was a head-fake to see which claimant would assent to baby-chopping and should have custody of zero babies.)
posted by away for regrooving at 11:34 AM on January 23, 2022 [36 favorites]
posted by away for regrooving at 11:34 AM on January 23, 2022 [36 favorites]
Can anyone help me understand the legal basis for the injunction request?
The judge is a shitheel in my opinion.
posted by NoThisIsPatrick at 11:50 AM on January 23, 2022 [8 favorites]
The judge is a shitheel in my opinion.
posted by NoThisIsPatrick at 11:50 AM on January 23, 2022 [8 favorites]
I hope that this ruling is appealed swiftly and the workers are granted immediate relief by a higher court. And the legislature bodies should immediately pass some laws to make sure this never happens again.
posted by interogative mood at 11:53 AM on January 23, 2022 [3 favorites]
posted by interogative mood at 11:53 AM on January 23, 2022 [3 favorites]
the legislature bodies should immediately pass some laws to make sure this never happens again.
Forget it, Jake. It's Wisconsin.
posted by tclark at 11:57 AM on January 23, 2022 [33 favorites]
Forget it, Jake. It's Wisconsin.
posted by tclark at 11:57 AM on January 23, 2022 [33 favorites]
"Based on "to protect the community's ongoing access to Level II Trauma and Comprehensive Stroke Care we provide" wording in this letter, I presume this is maybe more likely to be a precedent for people who provide services to a specific geographic area, so, maybe electricians at a utility company but not farmworkers?"
I'm spitballing here, buuuuuuut in general hospitals are not allowed to close -- or to significantly reduce services -- without permission from the state; the process takes 60 - 90 days in my state and requires state signoff. I'm looking at that letter, and I'm seeing a) that they really badly want to turn this into a situation where Ascension engaged in unfair competitive practices, which does not seem supported by the facts AT ALL -- Theda knows fighting with the nurses looks stupid, so they're trying to pick a fight with Ascension and frame it is "hospital vs. hospital" rather than "hospital vs. nurses." And b) they're afraid they're going to lose one of their certifications and/or get in trouble with the state for suddenly reducing services, and their lawyer is trying to turn ThedaCare's responsibility to maintain those services (or suffer significant consequences) into ThedaCare's EMPLOYEES' responsibility. Or Ascension's responsibility.
It's a super-bizarre situation because ThedaCare was given an opportunity to match the nurses' pay and retain at least some of them, and declined, saying the economics didn't support it. And now they're in a situation where they've filed a LAWSUIT ($$$) and they're going to have to hire traveling nurses ($$$$$), and they don't want to do that. But they don't want to pay the original nurses a small increase either.
ThedaCare looks like small, independent two-hospital local system. And those types of institutions have been hit really hard during the pandemic, because they don't have the cash or the borrowing ability (or the too-big-to-fail-ness) of large hospital systems (Ascension is much larger). As staffing problems have accelerated through the pandemic, we've seen similarly-sized hospitals give up and close; cut staffing so far to the bone that they've lost the ability to be reimbursed by medicare (which typically provides a huge chunk of their budget, and basically means they're going to close); and do ... whatever this is. In all these cases, there have been different kinds of underlying problems and bad management. But fundamentally, what they all have in common is that there are not nearly enough nurses left as we enter pandemic year 3, wages have increased way beyond the ability of small hospitals to keep up, and there's probably going to be a wave of closures of small-town and rural hospitals.
What ThedaCare should have done was make THAT case to the public, to the governor, and to the feds. (States are deploying national guard people to staff understaffed hospitals, and the feds have emergency response teams that deploys active-duty military medical teams for short-term service in badly-affected hospitals.) This is a systemic problem that is hitting small hospitals really hard, and it requires long-term systemic solutions -- major investment in medical training, state financial support, socialized health care.
Instead, we have .... this farce. (Which will not set a precedent, btw.)
As for the judge and his wildly wrong-headed injunction, the thing you need to know is that federal judges get vetted. They may be screaming ideologues, but they tend to at least know the law. State court judges aren't vetted, and a SHOCKING number of them don't know the law, and don't care to know the law, and just make shit up because they can. There are two strategies for going to state court -- make a really solid case with the intention of winning it on appeal if you get a clueless judge; or hire a local attorney who knows the judges and knows how to argue to that one clueless judge. I'm guessing ThedaCare's attorneys did a better job at pitching to the clueless, while Ascension's -- knowing this case has no merit -- just went with a straight-ahead good case.
posted by Eyebrows McGee at 12:00 PM on January 23, 2022 [77 favorites]
I'm spitballing here, buuuuuuut in general hospitals are not allowed to close -- or to significantly reduce services -- without permission from the state; the process takes 60 - 90 days in my state and requires state signoff. I'm looking at that letter, and I'm seeing a) that they really badly want to turn this into a situation where Ascension engaged in unfair competitive practices, which does not seem supported by the facts AT ALL -- Theda knows fighting with the nurses looks stupid, so they're trying to pick a fight with Ascension and frame it is "hospital vs. hospital" rather than "hospital vs. nurses." And b) they're afraid they're going to lose one of their certifications and/or get in trouble with the state for suddenly reducing services, and their lawyer is trying to turn ThedaCare's responsibility to maintain those services (or suffer significant consequences) into ThedaCare's EMPLOYEES' responsibility. Or Ascension's responsibility.
It's a super-bizarre situation because ThedaCare was given an opportunity to match the nurses' pay and retain at least some of them, and declined, saying the economics didn't support it. And now they're in a situation where they've filed a LAWSUIT ($$$) and they're going to have to hire traveling nurses ($$$$$), and they don't want to do that. But they don't want to pay the original nurses a small increase either.
ThedaCare looks like small, independent two-hospital local system. And those types of institutions have been hit really hard during the pandemic, because they don't have the cash or the borrowing ability (or the too-big-to-fail-ness) of large hospital systems (Ascension is much larger). As staffing problems have accelerated through the pandemic, we've seen similarly-sized hospitals give up and close; cut staffing so far to the bone that they've lost the ability to be reimbursed by medicare (which typically provides a huge chunk of their budget, and basically means they're going to close); and do ... whatever this is. In all these cases, there have been different kinds of underlying problems and bad management. But fundamentally, what they all have in common is that there are not nearly enough nurses left as we enter pandemic year 3, wages have increased way beyond the ability of small hospitals to keep up, and there's probably going to be a wave of closures of small-town and rural hospitals.
What ThedaCare should have done was make THAT case to the public, to the governor, and to the feds. (States are deploying national guard people to staff understaffed hospitals, and the feds have emergency response teams that deploys active-duty military medical teams for short-term service in badly-affected hospitals.) This is a systemic problem that is hitting small hospitals really hard, and it requires long-term systemic solutions -- major investment in medical training, state financial support, socialized health care.
Instead, we have .... this farce. (Which will not set a precedent, btw.)
As for the judge and his wildly wrong-headed injunction, the thing you need to know is that federal judges get vetted. They may be screaming ideologues, but they tend to at least know the law. State court judges aren't vetted, and a SHOCKING number of them don't know the law, and don't care to know the law, and just make shit up because they can. There are two strategies for going to state court -- make a really solid case with the intention of winning it on appeal if you get a clueless judge; or hire a local attorney who knows the judges and knows how to argue to that one clueless judge. I'm guessing ThedaCare's attorneys did a better job at pitching to the clueless, while Ascension's -- knowing this case has no merit -- just went with a straight-ahead good case.
posted by Eyebrows McGee at 12:00 PM on January 23, 2022 [77 favorites]
With a legal system like that, who needs tyrants?
posted by labberdasher at 12:06 PM on January 23, 2022 [8 favorites]
posted by labberdasher at 12:06 PM on January 23, 2022 [8 favorites]
The shortage in healthcare workers may be motivating this suit, but this opinion piece argues that companies are deliberately short-staffing to cut costs and maximize profits. Which would make the judge's actions in preventing workers from finding better work environments even more terrible.
posted by They sucked his brains out! at 12:08 PM on January 23, 2022 [15 favorites]
posted by They sucked his brains out! at 12:08 PM on January 23, 2022 [15 favorites]
mstokes650, my only disagreement with you was comparing this judge to Solomon. He could have tossed the case immediately but chose not to. I didn't think nor say you were agreeing with him.
posted by PhineasGage at 12:22 PM on January 23, 2022 [1 favorite]
posted by PhineasGage at 12:22 PM on January 23, 2022 [1 favorite]
ThedaCare looks like small, independent two-hospital local system.
Who pays its CEO over $1.2 million per year. [Sorry for the convoluted link, the "view a company's 990 form" scene is a racket]
posted by rhizome at 12:41 PM on January 23, 2022 [33 favorites]
Who pays its CEO over $1.2 million per year. [Sorry for the convoluted link, the "view a company's 990 form" scene is a racket]
posted by rhizome at 12:41 PM on January 23, 2022 [33 favorites]
Yeah at this point I'm sorry I even brought up Solomon. I didn't mean to suggest this judge was Solomon (except maybe in his own mind...) or even particularly hold up Solomon as a great judge (YMMV), and I definitely didn't mean to create a derail of people parsing the story or contemplating the nature of being a biblical king. I just brought it up as an example of a judge proposing an outcome that he knows is a bad outcome, not because he expects that to be how things turn out in the end, but because he wants to provoke a reaction from the parties.
From the HackerNews thread (which is, sadly, a lot more level-headed than this thread), I found a link to this article, which quotes the judge's 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.”
ThedaCare operates the only Level II trauma and comprehensive stroke care unit in the Fox Valley. It says losing these workers could impact its ability to have people on call 24/7, which is necessary for accreditation.
Which suggests Eyebrows McGee is right: ThedaCare's real problem is that if all these people leave, ThedaCare doesn't have enough people to keep its certifications as a Level II trauma center (though apparently they only need 2 of the 7 to be available on-call) which means people who need that level of trauma care/stroke care will have to get sent somewhere else not nearby. Now, why ThedaCare didn't do that math when their workers first said "we're leaving unless you pay us more" is an incomprehensible failure of management which I fully agree should not be rewarded. But here we are, and closing a regional trauma center in the middle of a pandemic because it doesn't have the amount of staff it's required to have is also a bad outcome.
So much for "There's no ambiguity here, there are no nuances."
posted by mstokes650 at 12:53 PM on January 23, 2022 [20 favorites]
From the HackerNews thread (which is, sadly, a lot more level-headed than this thread), I found a link to this article, which quotes the judge's 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.”
ThedaCare operates the only Level II trauma and comprehensive stroke care unit in the Fox Valley. It says losing these workers could impact its ability to have people on call 24/7, which is necessary for accreditation.
Which suggests Eyebrows McGee is right: ThedaCare's real problem is that if all these people leave, ThedaCare doesn't have enough people to keep its certifications as a Level II trauma center (though apparently they only need 2 of the 7 to be available on-call) which means people who need that level of trauma care/stroke care will have to get sent somewhere else not nearby. Now, why ThedaCare didn't do that math when their workers first said "we're leaving unless you pay us more" is an incomprehensible failure of management which I fully agree should not be rewarded. But here we are, and closing a regional trauma center in the middle of a pandemic because it doesn't have the amount of staff it's required to have is also a bad outcome.
So much for "There's no ambiguity here, there are no nuances."
posted by mstokes650 at 12:53 PM on January 23, 2022 [20 favorites]
Can anyone help me understand the legal basis for the injunction request?
Wisconsin has judicial elections. And an extra snarky smackdown from an appellate court is not something that loses you an election.
posted by ocschwar at 12:53 PM on January 23, 2022 [11 favorites]
I could see an argument for foul play if the employees hadn't given plenty of notice and even given their previous employer an opportunity to match the offer. That isn't what happened, though
I don't agree that an employee in an at will state, especially Wisconsin which has leaned so heavily into at will employment and union busting, has any obligation at all to provide notice. Quiting without notice isn't foul play, it's accepting the deal capitalists have forced on you. A deal that has worked great for capitalists as long as they've been operating with an abundance of labour but has them whining like a bad alternator bearing now that the dynamic has shifted to a labour shortage or even just a slightly smaller surplus.
Employees have zip zero nada obligation to employers to allow them to match competing offers. If an employer wants to keep employees who are attracted to higher wages elsewhere they should be keeping compensation up with the market in a preemptive manner. After all the employer has an HR department that should know what the going rate is. Employees shouldn't be providing market research for free on their own time.
posted by Mitheral at 1:16 PM on January 23, 2022 [58 favorites]
I don't agree that an employee in an at will state, especially Wisconsin which has leaned so heavily into at will employment and union busting, has any obligation at all to provide notice. Quiting without notice isn't foul play, it's accepting the deal capitalists have forced on you. A deal that has worked great for capitalists as long as they've been operating with an abundance of labour but has them whining like a bad alternator bearing now that the dynamic has shifted to a labour shortage or even just a slightly smaller surplus.
Employees have zip zero nada obligation to employers to allow them to match competing offers. If an employer wants to keep employees who are attracted to higher wages elsewhere they should be keeping compensation up with the market in a preemptive manner. After all the employer has an HR department that should know what the going rate is. Employees shouldn't be providing market research for free on their own time.
posted by Mitheral at 1:16 PM on January 23, 2022 [58 favorites]
So much for "There's no ambiguity here, there are no nuances."
Except there really is no ambiguity -- the bad outcomes in this case fall entirely, 100% on the table of ThedaCare, here. The hospital is seeking a judge to prevent their employees from working elsewhere because they chose not to match any offers and are seeking a legal injunction to punish anyone who might pay their staff better.
Don't blame the nurses for ThedaCare pointing a gun at the regional trauma center's head. The bad actor is ThedaCare from start to finish, and they're using "nice Trauma center you have, it'd be a shame if you let our employees leave because we CHOOSE not to pay them better, and something happened to it."
posted by tclark at 1:17 PM on January 23, 2022 [56 favorites]
Except there really is no ambiguity -- the bad outcomes in this case fall entirely, 100% on the table of ThedaCare, here. The hospital is seeking a judge to prevent their employees from working elsewhere because they chose not to match any offers and are seeking a legal injunction to punish anyone who might pay their staff better.
Don't blame the nurses for ThedaCare pointing a gun at the regional trauma center's head. The bad actor is ThedaCare from start to finish, and they're using "nice Trauma center you have, it'd be a shame if you let our employees leave because we CHOOSE not to pay them better, and something happened to it."
posted by tclark at 1:17 PM on January 23, 2022 [56 favorites]
From the HackerNews thread (which is, sadly, a lot more level-headed than this thread),
It may very well be, but it also has this exchange on possible consequences:
It may very well be, but it also has this exchange on possible consequences:
Context reminder, in an emergency the government can also conscript you to go die in a foreign warposted by DreamerFi at 1:18 PM on January 23, 2022 [6 favorites]And of course a big problem has always been that Halliburton can't conscript you to improve their bottom line when fighting a foreign war. Good thing we are fixing that.
I just don't see how it's possible for it to be ok to force someone to un-quit their job. If the trauma center was ever important to Theda then they wouldn't have let this happen. If the place closes it's due to that lack of care. Hospitals close for stupid reasons all the time, and it sucks for everyone, but this isn't the right answer.
posted by bleep at 1:27 PM on January 23, 2022 [10 favorites]
posted by bleep at 1:27 PM on January 23, 2022 [10 favorites]
In a better universe, this stupid situation would be handled by a judge who took improv training. ...Yes, And: every hour that the nurses are prevented from working at Ascension, they'll be paid at the rate they agreed with Ascension... by ThedaCare.
As it is, thanks! I hate it.
posted by snerson at 1:27 PM on January 23, 2022 [8 favorites]
As it is, thanks! I hate it.
posted by snerson at 1:27 PM on January 23, 2022 [8 favorites]
This 2020 series by Reuters reporters Michael Berens and John Shiffman -- The Teflon Robe -- makes for grim but riveting reading. It includes:
Part 1: Objections Overruled: Thousands of US judges who broke laws or oaths remained on the bench
Part 2: Emboldened by Impunity: With 'judges judging judges,' rogues on the bench have nothing to fear
Part 3: Exploiting the Bench: The long quest to stop a 'Sugar Daddy' judge accused of preying on women
Secretive systems created obstacles: How Reuters tracked judicial misconduct
Delving into disciplinary records: How to explore the misdeeds of judges across America
Plus Six takeaways from Reuters' investigation of misconduct by judges in the US
posted by virago at 1:31 PM on January 23, 2022 [25 favorites]
Part 1: Objections Overruled: Thousands of US judges who broke laws or oaths remained on the bench
Part 2: Emboldened by Impunity: With 'judges judging judges,' rogues on the bench have nothing to fear
Part 3: Exploiting the Bench: The long quest to stop a 'Sugar Daddy' judge accused of preying on women
Secretive systems created obstacles: How Reuters tracked judicial misconduct
Delving into disciplinary records: How to explore the misdeeds of judges across America
Plus Six takeaways from Reuters' investigation of misconduct by judges in the US
posted by virago at 1:31 PM on January 23, 2022 [25 favorites]
The injunction made absolutely no sense.
Injunction is supposed to prevent imminent and irreparable harm while the case is pending.
The only thing this prevents is for the workers to work at the new place. It does NOT stop the talent drain because the workers will NOT go back to ThedaCare (nor can the judge order it). The only thing this does is make the judge look stupid, and reveal ThedaCare is a dirty dealer who wants to f- its ex-workers via any means possible. ThedaCare has NO GAIN. TRO does NOT gain them any time to hire replacements.
Steve Lehto of Lehto's Law has his legal take on the topic.
posted by kschang at 1:36 PM on January 23, 2022 [15 favorites]
Injunction is supposed to prevent imminent and irreparable harm while the case is pending.
The only thing this prevents is for the workers to work at the new place. It does NOT stop the talent drain because the workers will NOT go back to ThedaCare (nor can the judge order it). The only thing this does is make the judge look stupid, and reveal ThedaCare is a dirty dealer who wants to f- its ex-workers via any means possible. ThedaCare has NO GAIN. TRO does NOT gain them any time to hire replacements.
Steve Lehto of Lehto's Law has his legal take on the topic.
posted by kschang at 1:36 PM on January 23, 2022 [15 favorites]
What makes this case bizarre isn't necessarily ThedaCare suing Ascension, it's the injunction.
I don't think they'd have a good case against Ascension for damages caused by the departure of the employees, but I can see circumstances that could get them there if it were to turn out that Ascension hired these people not because they actually wanted or needed them, but just to deprive ThedaCare of their services.
Even so, that's money damages that might be awarded later if ThedaCare loses certification or is otherwise punished by the state and they prove that Ascension engaged in unfair practices. Injunctive relief isn't appropriate.
posted by wierdo at 1:37 PM on January 23, 2022 [7 favorites]
I don't think they'd have a good case against Ascension for damages caused by the departure of the employees, but I can see circumstances that could get them there if it were to turn out that Ascension hired these people not because they actually wanted or needed them, but just to deprive ThedaCare of their services.
Even so, that's money damages that might be awarded later if ThedaCare loses certification or is otherwise punished by the state and they prove that Ascension engaged in unfair practices. Injunctive relief isn't appropriate.
posted by wierdo at 1:37 PM on January 23, 2022 [7 favorites]
Steve Lehto of Lehto's Law has his legal take on the topic.
I'm trying to look at it a few minutes after you posted that, and the video is not available any more... can you summarize?
posted by DreamerFi at 1:42 PM on January 23, 2022
I'm trying to look at it a few minutes after you posted that, and the video is not available any more... can you summarize?
posted by DreamerFi at 1:42 PM on January 23, 2022
Oh wait, link error - this is the right link: link
posted by DreamerFi at 1:43 PM on January 23, 2022 [1 favorite]
posted by DreamerFi at 1:43 PM on January 23, 2022 [1 favorite]
Oh, crap. Did I edit it wrong? Yes I did. I took out one extra letter. :-P https://youtu.be/QE5mV5V-pHs
posted by kschang at 1:45 PM on January 23, 2022 [1 favorite]
posted by kschang at 1:45 PM on January 23, 2022 [1 favorite]
The courts have not upheld mask mandates or vaccination requirements, so asking workers to give up their right to change jobs is unacceptable, despite the Pandemic. Also, what everybody else has said; lots of good content here.
I'd go back and promptly start using any unused sick time, with solid notes from a doctor or 2 because employees have limited ways to say Fuck You, No, and should avail themselves of what they can. Organizations learn from money, is the American way.
posted by theora55 at 2:10 PM on January 23, 2022 [7 favorites]
I'd go back and promptly start using any unused sick time, with solid notes from a doctor or 2 because employees have limited ways to say Fuck You, No, and should avail themselves of what they can. Organizations learn from money, is the American way.
posted by theora55 at 2:10 PM on January 23, 2022 [7 favorites]
To clarify, the injunction is against Ascension, not against the employees.
Wisconsin, like many jurisdictions, allows consideration of "any adverse impact on public safety or on the operation of the facility involved in the action or special proceeding caused by the temporary injunction" in crafting a TRO, and I expect the judge latched onto that language (there is probably also case law about the public interest being considered, at least in cases brought by the state, but I'm not researching Wisconsin state law on Sunday afternoon). However, while I don't think the papers are readily available and so don't know the plaintiff's arguments in detail, issuing this TRO cannot prevent the harm alleged by the plaintiff, since the nurses are not and cannot be compelled to work at the facility in question. Preventing an irreparable harm is generally a requirement for the issuance of a TRO. Further, Wisconsin law specifically requires that any injunction "[r]equire only what is necessary to correct the harm...[and be] the least intrusive means necessary to correct that harm."
posted by praemunire at 2:29 PM on January 23, 2022 [4 favorites]
Wisconsin, like many jurisdictions, allows consideration of "any adverse impact on public safety or on the operation of the facility involved in the action or special proceeding caused by the temporary injunction" in crafting a TRO, and I expect the judge latched onto that language (there is probably also case law about the public interest being considered, at least in cases brought by the state, but I'm not researching Wisconsin state law on Sunday afternoon). However, while I don't think the papers are readily available and so don't know the plaintiff's arguments in detail, issuing this TRO cannot prevent the harm alleged by the plaintiff, since the nurses are not and cannot be compelled to work at the facility in question. Preventing an irreparable harm is generally a requirement for the issuance of a TRO. Further, Wisconsin law specifically requires that any injunction "[r]equire only what is necessary to correct the harm...[and be] the least intrusive means necessary to correct that harm."
posted by praemunire at 2:29 PM on January 23, 2022 [4 favorites]
https://www.gofundme.com/f/thedacare-exemployee-support-fund
posted by Nancy Lebovitz at 2:38 PM on January 23, 2022 [7 favorites]
posted by Nancy Lebovitz at 2:38 PM on January 23, 2022 [7 favorites]
the bad outcomes in this case fall entirely, 100% on the table of ThedaCare
First time around it was all about how the judge was bad. As a (ostensible) representative of the community the judge absolutely has a responsibility here, no? Or am I missing some … nuance.
Don't blame the nurses for ThedaCare pointing a gun at the regional trauma center's head.
Nobody here has blamed them.
--
I'm curious how possible outcomes inflect the moral valence of this situation — ThedaCare fucked up in their hiring/negotiations with these nurses; if they then can't meet their obligations and are forced to close it will reduce the care available in their region, causing harm. Who's responsibility is it to reduce that harm? Who can reduce that harm? What are the options available? Merely saying "the judge fucked up" or "ThedaCare fucked up" (or alternating between the two) doesn't actually attend to the harm.
posted by wemayfreeze at 2:42 PM on January 23, 2022
First time around it was all about how the judge was bad. As a (ostensible) representative of the community the judge absolutely has a responsibility here, no? Or am I missing some … nuance.
Don't blame the nurses for ThedaCare pointing a gun at the regional trauma center's head.
Nobody here has blamed them.
--
I'm curious how possible outcomes inflect the moral valence of this situation — ThedaCare fucked up in their hiring/negotiations with these nurses; if they then can't meet their obligations and are forced to close it will reduce the care available in their region, causing harm. Who's responsibility is it to reduce that harm? Who can reduce that harm? What are the options available? Merely saying "the judge fucked up" or "ThedaCare fucked up" (or alternating between the two) doesn't actually attend to the harm.
posted by wemayfreeze at 2:42 PM on January 23, 2022
As a (ostensible) representative of the community the judge absolutely has a responsibility here, no?
No. The judge is responsible for interpreting the law in the specific circumstances of the case against the backdrop of existing precedent. He doesn't have a roving remit to manage the hospitals of the state; in fact, there's a probably a state agency that does.
posted by praemunire at 2:48 PM on January 23, 2022 [22 favorites]
No. The judge is responsible for interpreting the law in the specific circumstances of the case against the backdrop of existing precedent. He doesn't have a roving remit to manage the hospitals of the state; in fact, there's a probably a state agency that does.
posted by praemunire at 2:48 PM on January 23, 2022 [22 favorites]
This is definitely the price they should expect to pay without contracts (where I work nurses are unionized).
I suspect that management thought they would be able to patch the hole, but that is essentially impossible right now. You can imagine that when the going rate is 4-5k per week, you are way past elastic supply, and it is mechanically hard to find a replacement.
The framing is about "nurses" but 4 of the staff are interventional radiology technicians. It would be pretty neutral on the community if they were going to build a stroke team at the competition, but they may be doing other generic IR or even neuro-IR without the 24/7 staffing requirement. Given the "better lifestyle" talk that's possible. The big thing thedacare are losing is probably 24/7 staffing of the ability to do catheter angiography and support a neuro-interventionist for stroke center designation and the generic requirement for IR available in 30 minutes for level 1 and level 2 trauma centers.
posted by a robot made out of meat at 2:50 PM on January 23, 2022 [7 favorites]
I suspect that management thought they would be able to patch the hole, but that is essentially impossible right now. You can imagine that when the going rate is 4-5k per week, you are way past elastic supply, and it is mechanically hard to find a replacement.
The framing is about "nurses" but 4 of the staff are interventional radiology technicians. It would be pretty neutral on the community if they were going to build a stroke team at the competition, but they may be doing other generic IR or even neuro-IR without the 24/7 staffing requirement. Given the "better lifestyle" talk that's possible. The big thing thedacare are losing is probably 24/7 staffing of the ability to do catheter angiography and support a neuro-interventionist for stroke center designation and the generic requirement for IR available in 30 minutes for level 1 and level 2 trauma centers.
posted by a robot made out of meat at 2:50 PM on January 23, 2022 [7 favorites]
The immediate harm is that the medical people will lose a days pay.
That is what happens Monday.
Thedacare had a month to make a better offer or hire new staff.
They chose not to.
Instead waiting till the last possible minute to ask for an injunction.
This was their choice.
Might they lose some accreditation?
Who knows. It's not an immediate threat.
Thedacare had a month to do something about it they chose not to.
posted by yyz at 2:55 PM on January 23, 2022 [6 favorites]
That is what happens Monday.
Thedacare had a month to make a better offer or hire new staff.
They chose not to.
Instead waiting till the last possible minute to ask for an injunction.
This was their choice.
Might they lose some accreditation?
Who knows. It's not an immediate threat.
Thedacare had a month to do something about it they chose not to.
posted by yyz at 2:55 PM on January 23, 2022 [6 favorites]
Question: would the employees have any reasonable way to sue Thedacare for lost wages due to this?
posted by jeather at 2:59 PM on January 23, 2022 [5 favorites]
posted by jeather at 2:59 PM on January 23, 2022 [5 favorites]
Merely saying "the judge fucked up" or "ThedaCare fucked up" (or alternating between the two) doesn't actually attend to the harm.
And how is pointing fingers at people expressing disgust and disbelieve move the chains past "get thee to a metachattery" ?
posted by NoThisIsPatrick at 3:04 PM on January 23, 2022 [4 favorites]
And how is pointing fingers at people expressing disgust and disbelieve move the chains past "get thee to a metachattery" ?
posted by NoThisIsPatrick at 3:04 PM on January 23, 2022 [4 favorites]
If the employees had a contract, they might possibly bring a tortious interference claim. However, they probably don't, and that seems to be an element of such a claim under WI law. (Disclaimer: not a WI lawyer, and state law can vary.)
posted by praemunire at 3:07 PM on January 23, 2022 [2 favorites]
posted by praemunire at 3:07 PM on January 23, 2022 [2 favorites]
if they then can't meet their obligations and are forced to close it will reduce the care available in their region
Unless of course a different medical group gets their accreditation and fills the gap. Like Ascension, for example, who has just the staff for it.
posted by Tell Me No Lies at 3:10 PM on January 23, 2022 [3 favorites]
Unless of course a different medical group gets their accreditation and fills the gap. Like Ascension, for example, who has just the staff for it.
posted by Tell Me No Lies at 3:10 PM on January 23, 2022 [3 favorites]
This is what peak Liberty™ looks like.
posted by acb at 3:52 PM on January 23, 2022 [7 favorites]
posted by acb at 3:52 PM on January 23, 2022 [7 favorites]
It might be about losing the accreditation.
But it's certainly *also* about threatening all the other employees who may be thinking of quitting, and any potential places who may be thinking of hiring them, not to exercise those "rights" or else.
posted by ctmf at 3:52 PM on January 23, 2022 [20 favorites]
But it's certainly *also* about threatening all the other employees who may be thinking of quitting, and any potential places who may be thinking of hiring them, not to exercise those "rights" or else.
posted by ctmf at 3:52 PM on January 23, 2022 [20 favorites]
It's also about making sure they never are able to hire anyone good again.
posted by aubilenon at 3:54 PM on January 23, 2022 [17 favorites]
posted by aubilenon at 3:54 PM on January 23, 2022 [17 favorites]
It's probably already way too late for that. I doubt if the new hospital was offering a fantastic compensation package, except by comparison.
posted by ctmf at 3:57 PM on January 23, 2022 [2 favorites]
posted by ctmf at 3:57 PM on January 23, 2022 [2 favorites]
I was actually expecting to read of a bullshit non-compete contract that prevented any employees who ever quit from working in their field in the region for a year or something ridiculous like that. But no, it's just plain old using the legal process as an economic weapon.
posted by ctmf at 4:01 PM on January 23, 2022 [7 favorites]
posted by ctmf at 4:01 PM on January 23, 2022 [7 favorites]
"there’s no ambiguity here, there are no nuances is always bullshit and primarily serves to shut down conversation"
what a weird and terrifying religious dogma to live by.
if that were true, nobody could ever be entirely wrong about anything. which I suppose must be comforting to anyone who often is. but simply being comforting does not make an untrue thing into a good principle to live by.
posted by queenofbithynia at 4:17 PM on January 23, 2022 [18 favorites]
what a weird and terrifying religious dogma to live by.
if that were true, nobody could ever be entirely wrong about anything. which I suppose must be comforting to anyone who often is. but simply being comforting does not make an untrue thing into a good principle to live by.
posted by queenofbithynia at 4:17 PM on January 23, 2022 [18 favorites]
My guess is that if ThedaCare is willing resort to tactics like this, they could well be committing fraud in their billing practices with Medicare, and that after all this terrible publicity, an ambitious US Attorney for that region could make a name for themself by looking into it.
posted by jamjam at 4:17 PM on January 23, 2022 [4 favorites]
posted by jamjam at 4:17 PM on January 23, 2022 [4 favorites]
ThedaCare has its problems, and they look like complete shitheels in this scenario but they contract out their billing to a 3rd party that also serves like, every other independent rural hospital. I doubt there’s Medicare fraud happening.
posted by shesdeadimalive at 4:26 PM on January 23, 2022 [5 favorites]
posted by shesdeadimalive at 4:26 PM on January 23, 2022 [5 favorites]
> this opinion piece argues that companies are deliberately short-staffing to cut costs and maximize profits. (Non-paywalled Youtube link to the NYTimes opinion video)
One point they make in that video is that there are actually more people than ever who are trained and capable of taking these positions.
But the pay and even moreso, the working conditions, working time per week, excessive number of patients assigned, shift work, etc etc etc are so bad that many, many of those people who are qualified to work these positions simply will not do so any more.
And that doesn't even get into safety issues. Hospitals clearly can't, or won't, take the steps necessary to protect their staff from diseases like covid. I stayed in a (former) covid ward with my sister several days last year and word we got from the nursing staff was that they had ALL caught covid during that period - which was long before vaccinations etc. And even when we were there, almost a year after that initial covid squeeze, I was still waltzing into the hospital every day which a better mask then I ever saw on any of the hospital nurses or general staff (doctors etc usually had N95s, I had tracked down a source of KF94s by then. Nurses and other general staff all wore ill-fitting and clearly leaky surgical masks.)
And yeah, the reason the hospitals are squeezing the nursing and other medical staff this way is precisely to maximize profits.
FWIW doctors are generally far more well paid than nurses but from everything I've seen the hours, shift work, and general overwork and driving many of them to the brink, too. There is a point where no amount of money can possibly compensate for the shit life your job is forcing you to live.
Here is a nice article summarizing U.S. hospital profits since about 1981. Profits have ranged from 4% to 8%. 2010-2016 they were in the 7-8% range. That is a pretty damn healthy profit.
The article also talks about why hospitals have an incentive to float those super-high prices out there, which are always cut massively when the bill is paid by insurance, and why insurance companies have an incentive to just let that scheme continue and continuously inflate. Even just 25 years ago this massive over-pricing/insurance discounts thing was not really done - at least not nearly to the extent it is now.
posted by flug at 4:40 PM on January 23, 2022 [23 favorites]
One point they make in that video is that there are actually more people than ever who are trained and capable of taking these positions.
But the pay and even moreso, the working conditions, working time per week, excessive number of patients assigned, shift work, etc etc etc are so bad that many, many of those people who are qualified to work these positions simply will not do so any more.
And that doesn't even get into safety issues. Hospitals clearly can't, or won't, take the steps necessary to protect their staff from diseases like covid. I stayed in a (former) covid ward with my sister several days last year and word we got from the nursing staff was that they had ALL caught covid during that period - which was long before vaccinations etc. And even when we were there, almost a year after that initial covid squeeze, I was still waltzing into the hospital every day which a better mask then I ever saw on any of the hospital nurses or general staff (doctors etc usually had N95s, I had tracked down a source of KF94s by then. Nurses and other general staff all wore ill-fitting and clearly leaky surgical masks.)
And yeah, the reason the hospitals are squeezing the nursing and other medical staff this way is precisely to maximize profits.
FWIW doctors are generally far more well paid than nurses but from everything I've seen the hours, shift work, and general overwork and driving many of them to the brink, too. There is a point where no amount of money can possibly compensate for the shit life your job is forcing you to live.
Here is a nice article summarizing U.S. hospital profits since about 1981. Profits have ranged from 4% to 8%. 2010-2016 they were in the 7-8% range. That is a pretty damn healthy profit.
The article also talks about why hospitals have an incentive to float those super-high prices out there, which are always cut massively when the bill is paid by insurance, and why insurance companies have an incentive to just let that scheme continue and continuously inflate. Even just 25 years ago this massive over-pricing/insurance discounts thing was not really done - at least not nearly to the extent it is now.
posted by flug at 4:40 PM on January 23, 2022 [23 favorites]
I am going to take a moment to appreciate the irony that yet again Wisconsin's experiments with libertarianism end with state intervention to prevent the totally predictable outcomes of letting greedy people be very very greedy.
That's always where it ends up, everybody's a libertarian until their neighbor punches them in the face and then OH NO THE STATE MUST SAVE ME!
posted by Eyebrows McGee at 4:43 PM on January 23, 2022 [45 favorites]
That's always where it ends up, everybody's a libertarian until their neighbor punches them in the face and then OH NO THE STATE MUST SAVE ME!
posted by Eyebrows McGee at 4:43 PM on January 23, 2022 [45 favorites]
"I had a long post written but to sum it up, this is terrifing."
This is Wisconsin. Which, for around two decades, has been an off-Broadway preview of what will come to the national stage. We were doing pretty well before that, being pretty progressive (as defined for the era) for a good, long time. I grieve for my state.
posted by tllaya at 5:06 PM on January 23, 2022 [20 favorites]
This is Wisconsin. Which, for around two decades, has been an off-Broadway preview of what will come to the national stage. We were doing pretty well before that, being pretty progressive (as defined for the era) for a good, long time. I grieve for my state.
posted by tllaya at 5:06 PM on January 23, 2022 [20 favorites]
I remember it dawning on me then as a young kid that the Republican party (and, to be sure, more than a handful of Democrats) actually and truly wanted a return to full on serfdom or slavery. Like, not metaphorical serfdom, but an actual full-on bending and scraping kind of human suffering experienced by vast numbers of people for their own personal benefit. Not the impersonal kind of injury caused by economic and social negligence, but the an actual intentional diminishment and degradation of human life for their own enrichment and amusement.
Make America Feudal Again
posted by flabdablet at 5:10 PM on January 23, 2022 [4 favorites]
Make America Feudal Again
posted by flabdablet at 5:10 PM on January 23, 2022 [4 favorites]
Eyebrows McGee: What’s notable here, though, is this page’s nearly universal agreement about the dangerousness and the offensiveness of the logic that we have to sacrifice a few individual rights so we can keep the trauma center open to the public! It’s interesting to me that just about everyone here is explaining why ThedaCare is wrong by use of libertarian principles involving employment at will.
posted by PaulVario at 5:54 PM on January 23, 2022
posted by PaulVario at 5:54 PM on January 23, 2022
So much for "There's no ambiguity here, there are no nuances."
There is no ambiguity, there are no nuances. ThedaCare caused this problem and ThedaCare is responsible for fixing it. If the judge wanted to go rogue out of concern for the community, he could have ordered ThedaCare to staff up by the end of the week and/or match the Ascension offers. Weird how he put the onus on some at-will employees.
Who can reduce that harm? What are the options available? Merely saying "the judge fucked up" or "ThedaCare fucked up" (or alternating between the two) doesn't actually attend to the harm.
The answers are ThedaCare and ThedaCare hires more staff. Forcing at-will employees to fix their employers' bad judgment should never be an option.
posted by Mavri at 5:58 PM on January 23, 2022 [16 favorites]
There is no ambiguity, there are no nuances. ThedaCare caused this problem and ThedaCare is responsible for fixing it. If the judge wanted to go rogue out of concern for the community, he could have ordered ThedaCare to staff up by the end of the week and/or match the Ascension offers. Weird how he put the onus on some at-will employees.
Who can reduce that harm? What are the options available? Merely saying "the judge fucked up" or "ThedaCare fucked up" (or alternating between the two) doesn't actually attend to the harm.
The answers are ThedaCare and ThedaCare hires more staff. Forcing at-will employees to fix their employers' bad judgment should never be an option.
posted by Mavri at 5:58 PM on January 23, 2022 [16 favorites]
this page’s nearly universal agreement about the dangerousness and the offensiveness of the logic that we have to sacrifice a few individual rights so we can keep the trauma center open to the public!
If that's what you got from this thread, I'm not sure we're even reading the same thread at all.
posted by tclark at 5:58 PM on January 23, 2022 [11 favorites]
If that's what you got from this thread, I'm not sure we're even reading the same thread at all.
posted by tclark at 5:58 PM on January 23, 2022 [11 favorites]
The employees should take advantage of the national shortage of health care workers and gtfo Wisconsin or engage in a wildcat strike.
posted by interogative mood at 5:59 PM on January 23, 2022 [3 favorites]
posted by interogative mood at 5:59 PM on January 23, 2022 [3 favorites]
It’s interesting to me that just about everyone here is explaining why ThedaCare is wrong by use of libertarian principles involving employment at will.
What's good for the goose is good for the gander. You want at-will employment, you got it. There is nothing interesting about wanting fairness and equity. No one is making libertarian arguments here.
posted by Mavri at 6:00 PM on January 23, 2022 [28 favorites]
What's good for the goose is good for the gander. You want at-will employment, you got it. There is nothing interesting about wanting fairness and equity. No one is making libertarian arguments here.
posted by Mavri at 6:00 PM on January 23, 2022 [28 favorites]
There's a lot going on here, but how is this not restraint of trade, at the very least?
posted by lipservant at 6:02 PM on January 23, 2022 [6 favorites]
posted by lipservant at 6:02 PM on January 23, 2022 [6 favorites]
But the pay and even moreso, the working conditions, working time per week, excessive number of patients assigned, shift work, etc etc etc are so bad that many, many of those people who are qualified to work these positions simply will not do so any more.
And that doesn't even get into safety issues. Hospitals clearly can't, or won't, take the steps necessary to protect their staff from diseases like covid
Absolutely this. At the onset of the pandemic I worked in a hospital-based mental health intensive outpatient and inpatient program. It wasn't until about 10 months into the pandemic that administration even began to make movements in figuring out how to implement telehealth treatment services. They were themselves, of course, working safely from home starting in late February 2020, but there was no similar sense of urgency in implementing the most obvious measure to reduce/eliminate spread amongst staff and patients. They were just begining to implement telehealth protocols right around the time I threw up my hands and quit to start my own practice. Since I've left they've experienced massive turnover and are badly wanting for staff. I'm now working half as many hours making about a third more in income and there's absolutely no way I'd ever go back to that kind of environment where literally the entire point of the enterprise are the skills you and your colleagues bring to the table and yet you and those skills are held in such contempt by folks who are nearly completely superfluous yet somehow are the ones calling the shots.
posted by flamk at 6:19 PM on January 23, 2022 [17 favorites]
And that doesn't even get into safety issues. Hospitals clearly can't, or won't, take the steps necessary to protect their staff from diseases like covid
Absolutely this. At the onset of the pandemic I worked in a hospital-based mental health intensive outpatient and inpatient program. It wasn't until about 10 months into the pandemic that administration even began to make movements in figuring out how to implement telehealth treatment services. They were themselves, of course, working safely from home starting in late February 2020, but there was no similar sense of urgency in implementing the most obvious measure to reduce/eliminate spread amongst staff and patients. They were just begining to implement telehealth protocols right around the time I threw up my hands and quit to start my own practice. Since I've left they've experienced massive turnover and are badly wanting for staff. I'm now working half as many hours making about a third more in income and there's absolutely no way I'd ever go back to that kind of environment where literally the entire point of the enterprise are the skills you and your colleagues bring to the table and yet you and those skills are held in such contempt by folks who are nearly completely superfluous yet somehow are the ones calling the shots.
posted by flamk at 6:19 PM on January 23, 2022 [17 favorites]
You want at-will employment, you got it.
Right? They're voting with their feet.
"If you don't like what management is offering, you can always go somewhere else."
"Ok"
"Whoa, whoa now, we can't have that. What about the community?"
I'm not actually seeing how the second hospital has anything to do with this. What if those seven employees decided they didn't want to work at all? Just quit. To spend more time with family or whatever. Gardening, maybe. Could the old hospital get an injunction barring them from buying gardening tools?
If the old hospital is pleading "community harm" well, they better be prepared to pay premium prices to fix that. Nobody guaranteed them adequate staffing at rock-bottom prices. I wonder what's more: the amount they declined to give in raises to match the new hospital, or the legal cost they're taking on fighting it?
posted by ctmf at 6:19 PM on January 23, 2022 [21 favorites]
Right? They're voting with their feet.
"If you don't like what management is offering, you can always go somewhere else."
"Ok"
"Whoa, whoa now, we can't have that. What about the community?"
I'm not actually seeing how the second hospital has anything to do with this. What if those seven employees decided they didn't want to work at all? Just quit. To spend more time with family or whatever. Gardening, maybe. Could the old hospital get an injunction barring them from buying gardening tools?
If the old hospital is pleading "community harm" well, they better be prepared to pay premium prices to fix that. Nobody guaranteed them adequate staffing at rock-bottom prices. I wonder what's more: the amount they declined to give in raises to match the new hospital, or the legal cost they're taking on fighting it?
posted by ctmf at 6:19 PM on January 23, 2022 [21 favorites]
What seems to be the actual set of legal considerations at issue in this case is the government's regulatory power to ensure that a hospital maintains adequate levels of staffing to provide critical medical care for the community. Whether the judge is making the correct call or not — and neither I nor, I suspect, most here have the legal qualifications to evaluate this — that would appear to be the basis for his ruling, and the basis for the litigation between the two hospitals.
posted by Artifice_Eternity at 6:29 PM on January 23, 2022 [1 favorite]
posted by Artifice_Eternity at 6:29 PM on January 23, 2022 [1 favorite]
the logic that we have to sacrifice a few individual rights so we can keep the trauma center open to the public!
There's no fucking "logic" there. Even if we assume that hospitals have a moral or legal obligation to remain open & properly staffed to provide care, nothing prevented ThedaCare from doing that besides their own greed and pigheadedness. They had the chance to pay the employees an appropriate salary in order to retain them, they chose not to. They had a chance to hire new employees to replace the ones leaving, they chose not to.
No individual rights have to be sacrificed for the good of the public in this situation. Pointing this out is not "libertarian", for Christ's sake.
posted by soundguy99 at 6:41 PM on January 23, 2022 [26 favorites]
There's no fucking "logic" there. Even if we assume that hospitals have a moral or legal obligation to remain open & properly staffed to provide care, nothing prevented ThedaCare from doing that besides their own greed and pigheadedness. They had the chance to pay the employees an appropriate salary in order to retain them, they chose not to. They had a chance to hire new employees to replace the ones leaving, they chose not to.
No individual rights have to be sacrificed for the good of the public in this situation. Pointing this out is not "libertarian", for Christ's sake.
posted by soundguy99 at 6:41 PM on January 23, 2022 [26 favorites]
the basis for the litigation between the two hospitals
As a general rule, private entities don't get to invoke the government's regulatory power, particularly when (as here) they are not themselves the ones experiencing the harm that the regulatory power is directed against. I don't want to make too strong a statement because I can't even find the complaint online or the moving papers and state law differences will trip you up, but similar actions--such as those seeking to prevent the closure of hospitals--are generally brought by state AGs or other officials charged with overseeing the state's medical care. That is, the people chosen by the people of the state to make these decisions, or at least exercise whatever authority the state may have in influencing them.
posted by praemunire at 6:41 PM on January 23, 2022 [6 favorites]
As a general rule, private entities don't get to invoke the government's regulatory power, particularly when (as here) they are not themselves the ones experiencing the harm that the regulatory power is directed against. I don't want to make too strong a statement because I can't even find the complaint online or the moving papers and state law differences will trip you up, but similar actions--such as those seeking to prevent the closure of hospitals--are generally brought by state AGs or other officials charged with overseeing the state's medical care. That is, the people chosen by the people of the state to make these decisions, or at least exercise whatever authority the state may have in influencing them.
posted by praemunire at 6:41 PM on January 23, 2022 [6 favorites]
and neither I nor, I suspect, most here have the legal qualifications to evaluate this
I can evaluate this: the TRO barring the employees from working for the second hospital does not actually help the first hospital or the community at all. They already lost their employees; they quit. The TRO or whatever just punishes them for it and attempts to blame the second hospital for the first hospital's management problem.
posted by ctmf at 7:07 PM on January 23, 2022 [19 favorites]
I can evaluate this: the TRO barring the employees from working for the second hospital does not actually help the first hospital or the community at all. They already lost their employees; they quit. The TRO or whatever just punishes them for it and attempts to blame the second hospital for the first hospital's management problem.
posted by ctmf at 7:07 PM on January 23, 2022 [19 favorites]
Soundguy99: I think I agree with everything you wrote, except for the last sentence. If you don’t like my use of the word “logic,” sub in “theory”: the theory that we have to sacrifice individual rights to get a collective benefit — if used here — is really, really stupid! Nonetheless, the judge here seems to be operating on some version of it. I will add, though, that the general argument of “Just because you’re running a large collective enterprise that creates a social benefit, you aren’t allowed to use state power to block unwilling employees from going elsewhere: if you need to keep it going, what you do is pay people more” sounds awfully libertarian to me!
posted by PaulVario at 7:08 PM on January 23, 2022 [1 favorite]
posted by PaulVario at 7:08 PM on January 23, 2022 [1 favorite]
folks who are nearly completely superfluous yet somehow are the ones calling the shots
It's quite a thing, just how often it turns out to be folks who are nearly completely superfluous who do call the shots. It's almost as if a lifetime's devotion to polishing one's charisma and ability to fail upwards isn't the most productive use of a human being's time.
the general argument of “Just because you’re running a large collective enterprise that creates a social benefit, you aren’t allowed to use state power to block unwilling employees from going elsewhere: if you need to keep it going, what you do is pay people more” sounds awfully libertarian to me!
That's as may be, but it's also awfully US Constitutional. Perhaps worth reflecting that cotton plantations could also be characterized as large collective enterprises that create a social benefit.
posted by flabdablet at 7:13 PM on January 23, 2022 [6 favorites]
It's quite a thing, just how often it turns out to be folks who are nearly completely superfluous who do call the shots. It's almost as if a lifetime's devotion to polishing one's charisma and ability to fail upwards isn't the most productive use of a human being's time.
the general argument of “Just because you’re running a large collective enterprise that creates a social benefit, you aren’t allowed to use state power to block unwilling employees from going elsewhere: if you need to keep it going, what you do is pay people more” sounds awfully libertarian to me!
That's as may be, but it's also awfully US Constitutional. Perhaps worth reflecting that cotton plantations could also be characterized as large collective enterprises that create a social benefit.
posted by flabdablet at 7:13 PM on January 23, 2022 [6 favorites]
There's a lot going on here, but how is this not restraint of trade, at the very least?
The law restrains trade in a lot of ways, which is often a good thing. Raw capitalism is far more brutal than the system we all love to hate in the U.S.
Consider the case where Ascension didn’t really need employees but specifically sought out seven team members who’s leaving would cripple ThedaCare. ThedaCare goes out of business, after which Ascension jettisons the seven employees.
Nothing criminal in that, but definitely lawsuit worthy. Unfortunately the court documents are not available online, but I would guess some version of that story makes up ThedaCare’s complaint. And honestly if that really is the case then it’s the kind of trade I’m okay restricting.
(I very much doubt that is the case though)
posted by Tell Me No Lies at 7:17 PM on January 23, 2022 [3 favorites]
The law restrains trade in a lot of ways, which is often a good thing. Raw capitalism is far more brutal than the system we all love to hate in the U.S.
Consider the case where Ascension didn’t really need employees but specifically sought out seven team members who’s leaving would cripple ThedaCare. ThedaCare goes out of business, after which Ascension jettisons the seven employees.
Nothing criminal in that, but definitely lawsuit worthy. Unfortunately the court documents are not available online, but I would guess some version of that story makes up ThedaCare’s complaint. And honestly if that really is the case then it’s the kind of trade I’m okay restricting.
(I very much doubt that is the case though)
posted by Tell Me No Lies at 7:17 PM on January 23, 2022 [3 favorites]
What seems to be the actual set of legal considerations at issue in this case is the government's regulatory power to ensure that a hospital maintains adequate levels of staffing to provide critical medical care for the community.
Do these staffing regulations have any stipulations for what happens when the required staff levels can’t be met? Like, if the answer is “conscription” don’t we have state/national guards to call upon rather than former employees?
posted by a box and a stick and a string and a bear at 7:19 PM on January 23, 2022 [3 favorites]
Do these staffing regulations have any stipulations for what happens when the required staff levels can’t be met? Like, if the answer is “conscription” don’t we have state/national guards to call upon rather than former employees?
posted by a box and a stick and a string and a bear at 7:19 PM on January 23, 2022 [3 favorites]
Consider the case
Favorited for being delightfully evil thinking!
Still, I would throw quite a bit of blame on ThedaCare there for allowing themselves to be so vulnerable and not doing anything about it. Like over-staffing, matching the offer, or (horror) being the kind of place people wanted to stay at.
posted by ctmf at 7:24 PM on January 23, 2022 [7 favorites]
Favorited for being delightfully evil thinking!
Still, I would throw quite a bit of blame on ThedaCare there for allowing themselves to be so vulnerable and not doing anything about it. Like over-staffing, matching the offer, or (horror) being the kind of place people wanted to stay at.
posted by ctmf at 7:24 PM on January 23, 2022 [7 favorites]
Looks like McGinnis has been an elected Circuit Court judge in Outagamie County (population 175,000) since before 2011. Like many small county courts, Outagamie County Circuit Court records are not available online. Because the court records are not available, there is currently no way to evaluate the legal merits of the parties' positions.
Per the Appleton Post-Crescent article, the first hearing in the case took place on Friday, and a second, longer hearing will take place on Monday morning. The decision on Friday may have been designed to buy some time for the judge to get his arms around the issue over the weekend.
FWIW, a state court judge like McGinnis has to deal with everything from criminal cases to commercial disputes. It would not be unreasonable for him to need a little time to get a handle on the issues presented in this case.
Also, the article says that McGinnis issued an order prohibiting the employees from working at Ascension. Again, we can't know for sure at this point, but that's probably inaccurate. Unless ThedaCare sued its employees in addition to Ascension, the judge would not have the power to prevent them seeking employment because they would not be parties to the case. But he could issue an order preventing Ascension from onboarding them.
McGinnis may turn out to be an awful judge who gets this case completely wrong. Many judges are, especially (IMO) elected state court judges. But there's no way to know that at this point.
posted by lumpy at 7:26 PM on January 23, 2022 [2 favorites]
Per the Appleton Post-Crescent article, the first hearing in the case took place on Friday, and a second, longer hearing will take place on Monday morning. The decision on Friday may have been designed to buy some time for the judge to get his arms around the issue over the weekend.
FWIW, a state court judge like McGinnis has to deal with everything from criminal cases to commercial disputes. It would not be unreasonable for him to need a little time to get a handle on the issues presented in this case.
Also, the article says that McGinnis issued an order prohibiting the employees from working at Ascension. Again, we can't know for sure at this point, but that's probably inaccurate. Unless ThedaCare sued its employees in addition to Ascension, the judge would not have the power to prevent them seeking employment because they would not be parties to the case. But he could issue an order preventing Ascension from onboarding them.
McGinnis may turn out to be an awful judge who gets this case completely wrong. Many judges are, especially (IMO) elected state court judges. But there's no way to know that at this point.
posted by lumpy at 7:26 PM on January 23, 2022 [2 favorites]
Also re: legal qualifications, do I have to go to law school to be able to understand & think about the given facts of a case compared with basic fairness? I know the laws are complicated but are they really only accessible to a special class?
posted by bleep at 7:42 PM on January 23, 2022 [4 favorites]
posted by bleep at 7:42 PM on January 23, 2022 [4 favorites]
Hey, I’d fucking love it if more US employees weren’t at-will employees. If you work with a contract with an employer then you negotiate for benefits due to you by law, vacation days, a notice period, severance pay, and job security. Contract employment is almost universally better for the employees than at-will employment. In the UK, if you’ve worked somewhere for more than twp years, they have to have a reason to fire you? They can’t just fire you because they don’t like your socks.
Just about the only situation when at-will employment benefits the employee instead of the employer is when Joe Schmoe wants to quit. Because just like that employer can fire you as of right now Without giving you severance or notice, Joe can quit right now without serving our two weeks notice and without allowing you to have a chance to match the new salary he was offered because fuck you and your unappreciative ass for not giving me a raise when I asked for one six months ago and showed you salary data showing I was underpaid, that’s why. This is the only time when it benefits the employer, and this fucking company benefitted by these rules and tried to play hardball against its employees and now they’re complaining that the rules aren’t fair. They’re goddamn right they’re not fair.
posted by bq at 7:57 PM on January 23, 2022 [15 favorites]
Just about the only situation when at-will employment benefits the employee instead of the employer is when Joe Schmoe wants to quit. Because just like that employer can fire you as of right now Without giving you severance or notice, Joe can quit right now without serving our two weeks notice and without allowing you to have a chance to match the new salary he was offered because fuck you and your unappreciative ass for not giving me a raise when I asked for one six months ago and showed you salary data showing I was underpaid, that’s why. This is the only time when it benefits the employer, and this fucking company benefitted by these rules and tried to play hardball against its employees and now they’re complaining that the rules aren’t fair. They’re goddamn right they’re not fair.
posted by bq at 7:57 PM on January 23, 2022 [15 favorites]
In the Steve Lehto video linked above Steve makes the observation that a TRO like this can have a bond attached to it by the seeking party to create a downside to failing to obtain permanent action. For example in this case the judge could have required Thedacare to post a bond equivalent to a couple weeks salary for the people effected that would be forfeited to those employees if Thedacare is ultimately unsuccessful. Seems reasonable.
posted by Mitheral at 8:10 PM on January 23, 2022 [5 favorites]
posted by Mitheral at 8:10 PM on January 23, 2022 [5 favorites]
Per the Appleton Post-Crescent article, the first hearing in the case took place on Friday, and a second, longer hearing will take place on Monday morning. The decision on Friday may have been designed to buy some time for the judge to get his arms around the issue over the weekend.
What issue? This is the core problem here - the plaintiff has no case, as the employees responded to an open job listing (and frankly, "poaching" is an asinine argument that has no real justification.) Beyond that, the TRO doesn't actually resolve the supposed issue of staffing at the heart of the matter (because the judge does know he doesn't have the authority to compel the workers involved to return to their former employer,) so there's no actual justification for it. In short, the judge's ruling has no real basis.
Also, the article says that McGinnis issued an order prohibiting the employees from working at Ascension. Again, we can't know for sure at this point, but that's probably inaccurate. Unless ThedaCare sued its employees in addition to Ascension, the judge would not have the power to prevent them seeking employment because they would not be parties to the case. But he could issue an order preventing Ascension from onboarding them.
Which would be prohibiting them from working at their new employer, so that was inaccurate how, exactly?
McGinnis may turn out to be an awful judge who gets this case completely wrong. Many judges are, especially (IMO) elected state court judges. But there's no way to know that at this point.
When a judge issues a TRO with no legitimate basis, based on an argument that it cannot resolve - I think we can safely say the judge done fucked up here.
posted by NoxAeternum at 8:10 PM on January 23, 2022 [12 favorites]
What issue? This is the core problem here - the plaintiff has no case, as the employees responded to an open job listing (and frankly, "poaching" is an asinine argument that has no real justification.) Beyond that, the TRO doesn't actually resolve the supposed issue of staffing at the heart of the matter (because the judge does know he doesn't have the authority to compel the workers involved to return to their former employer,) so there's no actual justification for it. In short, the judge's ruling has no real basis.
Also, the article says that McGinnis issued an order prohibiting the employees from working at Ascension. Again, we can't know for sure at this point, but that's probably inaccurate. Unless ThedaCare sued its employees in addition to Ascension, the judge would not have the power to prevent them seeking employment because they would not be parties to the case. But he could issue an order preventing Ascension from onboarding them.
Which would be prohibiting them from working at their new employer, so that was inaccurate how, exactly?
McGinnis may turn out to be an awful judge who gets this case completely wrong. Many judges are, especially (IMO) elected state court judges. But there's no way to know that at this point.
When a judge issues a TRO with no legitimate basis, based on an argument that it cannot resolve - I think we can safely say the judge done fucked up here.
posted by NoxAeternum at 8:10 PM on January 23, 2022 [12 favorites]
What issue? This is the core problem here - the plaintiff has no case
Yeah all I'm seeing is that ThedaCare seems to not feel like they have to pay market rate to meet their staffing obligations, or that they are owed some kind of notice period so that they can meet those requirements.
Despite having that notice period and an opportunity to pay market rate before the workers even quit. Also, no. If that's what you wanted, that's what contract employees are for, not at-will employees. A pretty clear cake-and-eat-it-too case, with bonus naked retaliation.
posted by ctmf at 8:23 PM on January 23, 2022 [8 favorites]
Yeah all I'm seeing is that ThedaCare seems to not feel like they have to pay market rate to meet their staffing obligations, or that they are owed some kind of notice period so that they can meet those requirements.
Despite having that notice period and an opportunity to pay market rate before the workers even quit. Also, no. If that's what you wanted, that's what contract employees are for, not at-will employees. A pretty clear cake-and-eat-it-too case, with bonus naked retaliation.
posted by ctmf at 8:23 PM on January 23, 2022 [8 favorites]
This is the core problem here - the plaintiff has no case, as the employees responded to an open job listing (and frankly, "poaching" is an asinine argument that has no real justification.)
There is some possibility that WI has some law or regulation governing how/whether hospitals can hire other hospitals' employees. It wouldn't be...unimaginable. That's all I can think of. Even then, I can't see how any form of irreparable harm standard could be met.
posted by praemunire at 8:26 PM on January 23, 2022 [1 favorite]
There is some possibility that WI has some law or regulation governing how/whether hospitals can hire other hospitals' employees. It wouldn't be...unimaginable. That's all I can think of. Even then, I can't see how any form of irreparable harm standard could be met.
posted by praemunire at 8:26 PM on January 23, 2022 [1 favorite]
In the Steve Lehto video linked above Steve makes the observation that a TRO like this can have a bond attached to it by the seeking party to create a downside to failing to obtain permanent action. For example in this case the judge could have required Thedacare to post a bond equivalent to a couple weeks salary for the people effected that would be forfeited to those employees if Thedacare is ultimately unsuccessful. Seems reasonable.
Except it isn't. Bond requirements like this routinely deny access to the courts for people who are unable to meet them, and are abused as such.
posted by NoxAeternum at 8:29 PM on January 23, 2022 [3 favorites]
Except it isn't. Bond requirements like this routinely deny access to the courts for people who are unable to meet them, and are abused as such.
posted by NoxAeternum at 8:29 PM on January 23, 2022 [3 favorites]
"Do these staffing regulations have any stipulations for what happens when the required staff levels can’t be met? "
So the way it's supposed to work (at least in my state) is that hospitals are continuously audited by the state department of public health, and the state is continuously aware of staffing levels. The hospital knows what staffing levels it has to maintain (for state certification, for Medicare billing, for other governmental regulations), and if their staffing levels start falling, they know they have to hire back up. There are warning periods with the state, and the state will put a hospital on probation until it gets back up to the appropriate staffing levels. (Federal regulators can do similar, for the bits they regulate.) Generally this would be the kind of thing that developed over a period of months and involved state regulators all along the way.
Like others, I do wish we could read the filings; this almost has to be an unlawful restraint of trade sort of case, where they're accusing Ascension of deliberately hiring away their staff to injure ThedaCare (but, I do suspect, ThedaCare also made arguments about losing their certification to confound the issue, as state court judges are often not that hard to confound).
In my relatively functional state of Illinois, short-staffed hospitals are talking to the state, and the state is dispatching medical National Guard units. And when the state's ability to respond was overwhelmed, the governor appealed to the federal government, who has sent a rapid-response team (for 3-4 weeks?).
But no, there's no specific stipulation for what hospitals ought to do, other than "staff back up."
And I do want to emphasize again that the pandemic has upset a whole bunch of things that rural and small-town hospitals relied upon. ABSOLUTELY non-profit hospitals make way too much profit (I have a whole rant in my pocket about hospital parking lots on valuable city real estate not being taxed because the hospital is non-profit; also I have VERY SPECIFIC ISSUES about Illinois non-profit regulations as they apply to hospitals; also I have VERY SPECIFIC COMPLAINTS about what things hospitals are allowed to count towards their non-profit status under the federal tax code).
But rural hospitals (I'm going to say "rural" for "rural and small-town" from here on out) were suffering from a variety of problems before the pandemic, and the pandemic has massively accelerated them. Rural hospitals have been closing for years; they just don't make enough money in high-profit patient care to subsidize the low-profit patient care, and hospitals require such massive, massive administrative costs to operate in a for-profit insurance environment that it's hard to run a small hospital anymore. In Illinois, a lot of our rural hospitals were staffed by doctors who came to the US under a program that awarded them permanent residency after five years serving in an underserved rural hospital, a program that was disrupted under Trump. (And honestly, imagine being educated in Mumbai and getting a visa to go live in rural Illinois to work at a tiny rural hospital for five years as the only ER doctor, while your kids are the only Indian children in the entire county. You grew up in one of the world's great cities, and now YOU LIVE IN THE MIDDLE OF CORN in a town of 600 and have to drive 90 minutes to the nearest Hindu temple. I love rural Illinois, but that's a big ask.)
I got a little side-tracked. But rural hospital staffing has been a major issue for 20 years (longer, I know, but 20 years ago I started teaching medical ethics to nursing students in a rural-hospital-serving nursing education program). Until recently, hospitals have been able to fill in with new nurses entering the pipeline, and with travelling nurses. (And here, I'm using "nurses" to mean "all patient contact people except doctors," like CNAs and even housekeeping, although to a certain extent doctors are caught up in the same net too.) But the pandemic has driven a lot of long-time nurses out of the profession -- often senior nurses who had many years at a particular hospital, and who weren't likely to move regions b/c their family was established where they lived. And the demands of high pandemic staffing has pushed travelling nurse rates sky-high. The travelling nurse system is really mean to respond to local surges here and there, not to MASSIVE NATIONWIDE SURGES ALL AT ONCE FOR TWO SOLID YEARS. The costs of hiring enough nurses to staff a hospital are literally out of control -- even if you offer good pay and benefits and a good quality of life (which you don't! you're a hospital! you probably suck!), it's nothing compared to what an agency will pay your nurses to go do travelling work. Like, it's totally worth giving up long-term contracts and benefits to go make travelling nurse pay, it is not even a close contest.
So on the one hand, ThedaCare's collapse is a sign of greedy hospital management. But on the other hand, it's at the mercy of factors that have been accelerating for years and years. Factors that probably the only solution to is socialized health care ... if we intend to keep providing health care for people in rural areas, it's not going to be via for-profit insurance companies and non-profit (but secretly for-profit) hospital systems. (I have a whole NOTHER rant about Catholic hospital systems that provide the vast bulk of rural health care in my state, with the usual religious restrictions that shouldn't be imposed on citizens AND ALSO the state fuckin' sucks for divesting entirely from health care.)
Like this is one situation of one pretty fucked-up health care system suing over what seems to be a VERY BIZARRE legal claim that will go nowhere in court, that got lucky with a state court judge who doesn't know his ass from his elbow. BUT ALSO it's a harbinger of the collapse of rural and small-town health care in the United States, and while this specific collapse involves very specific dumbassery, and every collapse is going to involve very specific dumbassery, the collapse is coming for all rural health systems, and it's going to be very ugly.
This is a nationwide problem and a nationwide collapse that requires a coordinated nationwide response. Are we going to have one? No, no we are not, because that's socialism. We're just going to watch a bunch of rural hospitals collapse and be like, "OH NO WHO COULD HAVE PREDICTED." Everyone, literally everyone predicted. But responding would have required a coordinated government response, and that's socialism, so.
posted by Eyebrows McGee at 8:29 PM on January 23, 2022 [61 favorites]
So the way it's supposed to work (at least in my state) is that hospitals are continuously audited by the state department of public health, and the state is continuously aware of staffing levels. The hospital knows what staffing levels it has to maintain (for state certification, for Medicare billing, for other governmental regulations), and if their staffing levels start falling, they know they have to hire back up. There are warning periods with the state, and the state will put a hospital on probation until it gets back up to the appropriate staffing levels. (Federal regulators can do similar, for the bits they regulate.) Generally this would be the kind of thing that developed over a period of months and involved state regulators all along the way.
Like others, I do wish we could read the filings; this almost has to be an unlawful restraint of trade sort of case, where they're accusing Ascension of deliberately hiring away their staff to injure ThedaCare (but, I do suspect, ThedaCare also made arguments about losing their certification to confound the issue, as state court judges are often not that hard to confound).
In my relatively functional state of Illinois, short-staffed hospitals are talking to the state, and the state is dispatching medical National Guard units. And when the state's ability to respond was overwhelmed, the governor appealed to the federal government, who has sent a rapid-response team (for 3-4 weeks?).
But no, there's no specific stipulation for what hospitals ought to do, other than "staff back up."
And I do want to emphasize again that the pandemic has upset a whole bunch of things that rural and small-town hospitals relied upon. ABSOLUTELY non-profit hospitals make way too much profit (I have a whole rant in my pocket about hospital parking lots on valuable city real estate not being taxed because the hospital is non-profit; also I have VERY SPECIFIC ISSUES about Illinois non-profit regulations as they apply to hospitals; also I have VERY SPECIFIC COMPLAINTS about what things hospitals are allowed to count towards their non-profit status under the federal tax code).
But rural hospitals (I'm going to say "rural" for "rural and small-town" from here on out) were suffering from a variety of problems before the pandemic, and the pandemic has massively accelerated them. Rural hospitals have been closing for years; they just don't make enough money in high-profit patient care to subsidize the low-profit patient care, and hospitals require such massive, massive administrative costs to operate in a for-profit insurance environment that it's hard to run a small hospital anymore. In Illinois, a lot of our rural hospitals were staffed by doctors who came to the US under a program that awarded them permanent residency after five years serving in an underserved rural hospital, a program that was disrupted under Trump. (And honestly, imagine being educated in Mumbai and getting a visa to go live in rural Illinois to work at a tiny rural hospital for five years as the only ER doctor, while your kids are the only Indian children in the entire county. You grew up in one of the world's great cities, and now YOU LIVE IN THE MIDDLE OF CORN in a town of 600 and have to drive 90 minutes to the nearest Hindu temple. I love rural Illinois, but that's a big ask.)
I got a little side-tracked. But rural hospital staffing has been a major issue for 20 years (longer, I know, but 20 years ago I started teaching medical ethics to nursing students in a rural-hospital-serving nursing education program). Until recently, hospitals have been able to fill in with new nurses entering the pipeline, and with travelling nurses. (And here, I'm using "nurses" to mean "all patient contact people except doctors," like CNAs and even housekeeping, although to a certain extent doctors are caught up in the same net too.) But the pandemic has driven a lot of long-time nurses out of the profession -- often senior nurses who had many years at a particular hospital, and who weren't likely to move regions b/c their family was established where they lived. And the demands of high pandemic staffing has pushed travelling nurse rates sky-high. The travelling nurse system is really mean to respond to local surges here and there, not to MASSIVE NATIONWIDE SURGES ALL AT ONCE FOR TWO SOLID YEARS. The costs of hiring enough nurses to staff a hospital are literally out of control -- even if you offer good pay and benefits and a good quality of life (which you don't! you're a hospital! you probably suck!), it's nothing compared to what an agency will pay your nurses to go do travelling work. Like, it's totally worth giving up long-term contracts and benefits to go make travelling nurse pay, it is not even a close contest.
So on the one hand, ThedaCare's collapse is a sign of greedy hospital management. But on the other hand, it's at the mercy of factors that have been accelerating for years and years. Factors that probably the only solution to is socialized health care ... if we intend to keep providing health care for people in rural areas, it's not going to be via for-profit insurance companies and non-profit (but secretly for-profit) hospital systems. (I have a whole NOTHER rant about Catholic hospital systems that provide the vast bulk of rural health care in my state, with the usual religious restrictions that shouldn't be imposed on citizens AND ALSO the state fuckin' sucks for divesting entirely from health care.)
Like this is one situation of one pretty fucked-up health care system suing over what seems to be a VERY BIZARRE legal claim that will go nowhere in court, that got lucky with a state court judge who doesn't know his ass from his elbow. BUT ALSO it's a harbinger of the collapse of rural and small-town health care in the United States, and while this specific collapse involves very specific dumbassery, and every collapse is going to involve very specific dumbassery, the collapse is coming for all rural health systems, and it's going to be very ugly.
This is a nationwide problem and a nationwide collapse that requires a coordinated nationwide response. Are we going to have one? No, no we are not, because that's socialism. We're just going to watch a bunch of rural hospitals collapse and be like, "OH NO WHO COULD HAVE PREDICTED." Everyone, literally everyone predicted. But responding would have required a coordinated government response, and that's socialism, so.
posted by Eyebrows McGee at 8:29 PM on January 23, 2022 [61 favorites]
Bond requirements like this routinely deny access to the courts for people who are unable to meet them, and are abused as such.
I was meaning reasonable in this specific case rather than as general policy.
posted by Mitheral at 8:56 PM on January 23, 2022 [1 favorite]
I was meaning reasonable in this specific case rather than as general policy.
posted by Mitheral at 8:56 PM on January 23, 2022 [1 favorite]
I made a comment in some other thread recently about predicting Republicaism forcing people to work at gunpoint in the near future... (Which I think the mods stealth deleted.)
But I'd like to reiterate that prediction here, with the caveat that I didn't expect it so soon.
posted by Jacen at 9:10 PM on January 23, 2022 [9 favorites]
But I'd like to reiterate that prediction here, with the caveat that I didn't expect it so soon.
posted by Jacen at 9:10 PM on January 23, 2022 [9 favorites]
As high schoolers/young adults, my parents worked in the shoe factories in the Lowell and Lawrence, Mass., area during World War II and they were not permitted to quit one factory for another. But that was during a war, when the supposed common good--keeping a vital commodity available to the military and civilians--was an accepted concept. I say "supposed" only because I assume, from their telling, that it wasn't just a sleazy wage-suppression tactic. But this ruling by this judge seems over the top and I look forward to reading more.
posted by etaoin at 10:41 PM on January 23, 2022
posted by etaoin at 10:41 PM on January 23, 2022
I think we can safely say the judge done fucked up here
especially given this particular judge's form.
posted by flabdablet at 10:58 PM on January 23, 2022
especially given this particular judge's form.
posted by flabdablet at 10:58 PM on January 23, 2022
Historical context: In 1351, Edward III prohibited the offering of higher wages or moving to seek higher wages. History repeats itself, or at least tries to rhyme.
posted by Mogur at 5:07 AM on January 24, 2022 [5 favorites]
posted by Mogur at 5:07 AM on January 24, 2022 [5 favorites]
The judge hearing this case today has a history of poor judgments.
posted by kimchi at 6:40 AM on January 24, 2022 [1 favorite]
posted by kimchi at 6:40 AM on January 24, 2022 [1 favorite]
I was meaning reasonable in this specific case rather than as general policy.
Which is the problem - harmful policies are routinely defended using cases where they sound reasonable. Things like bond requirements are general policy, and need to be treated as such, even if there are cases where it may seem "reasonable".
posted by NoxAeternum at 7:40 AM on January 24, 2022
Which is the problem - harmful policies are routinely defended using cases where they sound reasonable. Things like bond requirements are general policy, and need to be treated as such, even if there are cases where it may seem "reasonable".
posted by NoxAeternum at 7:40 AM on January 24, 2022
I made a comment in some other thread recently about predicting Republicaism forcing people to work at gunpoint in the near future... (Which I think the mods stealth deleted.)
But I'd like to reiterate that prediction here, with the caveat that I didn't expect it so soon.
posted by Jacen at 9:10 PM on January 23
Now that we're innovating by sending soldiers & cops into schools the younger generations will be accustomed to being forced to work by lunkheads with guns & that'll be the ballgame.
posted by bleep at 7:45 AM on January 24, 2022 [1 favorite]
But I'd like to reiterate that prediction here, with the caveat that I didn't expect it so soon.
posted by Jacen at 9:10 PM on January 23
Now that we're innovating by sending soldiers & cops into schools the younger generations will be accustomed to being forced to work by lunkheads with guns & that'll be the ballgame.
posted by bleep at 7:45 AM on January 24, 2022 [1 favorite]
Since the next court date was today about...now-ish...I wonder when we'll see any updates.
posted by sharp pointy objects at 9:03 AM on January 24, 2022
posted by sharp pointy objects at 9:03 AM on January 24, 2022
Here's an article from today about the case.
https://www.wbay.com/2022/01/24/employees-expected-testify-hearing-dispute-between-thedacare-ascension/
Judge Mark McGinnis’s injunction ordered Ascension:
“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.”
Some of the employees in question are to testify today.
posted by Spike Glee at 10:16 AM on January 24, 2022
https://www.wbay.com/2022/01/24/employees-expected-testify-hearing-dispute-between-thedacare-ascension/
Judge Mark McGinnis’s injunction ordered Ascension:
“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.”
Some of the employees in question are to testify today.
posted by Spike Glee at 10:16 AM on January 24, 2022
Make available to ThedaCare
Presumably Ascension gets to bill ThedaCare for picking up some of their work with Ascension employees?
posted by ctmf at 10:50 AM on January 24, 2022
Presumably Ascension gets to bill ThedaCare for picking up some of their work with Ascension employees?
posted by ctmf at 10:50 AM on January 24, 2022
announced about 5 hours ago: Judge lifts injunction in ThedaCare, Ascension worker dispute
posted by mephron at 1:44 PM on January 24, 2022 [17 favorites]
posted by mephron at 1:44 PM on January 24, 2022 [17 favorites]
Meanwhile, I was able to find a copy of (I think) the original temporary restraining order as well as Ascension's brief in opposition which starts with this paragraph:
posted by mhum at 2:09 PM on January 24, 2022 [19 favorites]
“Your failure to prepare is not my personal emergency.” This wry observation—a favorite of parents, teachers, coaches, and perhaps a few judges—concisely captures the core concept of personal responsibility most ofus learned in childhood: don’t blame others for your own mistakesThere's also this tidbit from the top of page 7 (emph. added):
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.To be fair to Mr. Schumaker, in the next paragraph, they make clear that he was merely relaying a message from Thedacare's senior management and not offering his own personal judgment; if anything, they quote him as being supportive of the radiology technologists moving to their new jobs.
posted by mhum at 2:09 PM on January 24, 2022 [19 favorites]
Ascension's brief in opposition
Scathing.
I especially liked how they threw in the part about how even the TRO was improper. Starts off as a jab at the judge, but then they manage to convert that to the judge being a victim of ThedaCare's rushed attempt to railroad it through before anyone knew what was going on. That way he could think "Yeah! Those assholes embarrassed me!" without being offended.
I don't know if that works on judges, or maybe it's standard in opposition briefs, but it seemed reallly smooth to me. I'm saving that technique for later.
posted by ctmf at 4:14 PM on January 24, 2022 [8 favorites]
Scathing.
I especially liked how they threw in the part about how even the TRO was improper. Starts off as a jab at the judge, but then they manage to convert that to the judge being a victim of ThedaCare's rushed attempt to railroad it through before anyone knew what was going on. That way he could think "Yeah! Those assholes embarrassed me!" without being offended.
I don't know if that works on judges, or maybe it's standard in opposition briefs, but it seemed reallly smooth to me. I'm saving that technique for later.
posted by ctmf at 4:14 PM on January 24, 2022 [8 favorites]
Hi mhum, nice work on pulling those briefs.
The quote from the news article makes it sound like the judge’s order on Friday was more nuanced then previously reported. Rather than a complete ban on hiring the employees, the article says that one of the options he gave Ascension was to make two of the employees available to work with ThedaCare on an on-call basis.
It also seems clear that Friday’s decision was not really on a decision on the merits, but instead a placeholder to maintain the status quo over the weekend until the court has the opportunity to hear testimony today.
It will be interesting to see where the case goes from here.
posted by lumpy at 4:59 PM on January 24, 2022 [1 favorite]
The quote from the news article makes it sound like the judge’s order on Friday was more nuanced then previously reported. Rather than a complete ban on hiring the employees, the article says that one of the options he gave Ascension was to make two of the employees available to work with ThedaCare on an on-call basis.
It also seems clear that Friday’s decision was not really on a decision on the merits, but instead a placeholder to maintain the status quo over the weekend until the court has the opportunity to hear testimony today.
It will be interesting to see where the case goes from here.
posted by lumpy at 4:59 PM on January 24, 2022 [1 favorite]
It will be interesting to see where the case goes from here.
The way plaintiff's own brief spends so much time pleading how they don't have to show they have a good chance of winning, only that in some bizarro universe it's conceivable that they could get lucky, seems like they know they have no chance. Or at least the legal team does.
posted by ctmf at 5:06 PM on January 24, 2022 [3 favorites]
The way plaintiff's own brief spends so much time pleading how they don't have to show they have a good chance of winning, only that in some bizarro universe it's conceivable that they could get lucky, seems like they know they have no chance. Or at least the legal team does.
posted by ctmf at 5:06 PM on January 24, 2022 [3 favorites]
The brief in opposition mhum links to is quality reading material if you are interested in the job conditions the affected employees were leaving.
After six people gave notice in two days, ThedaCare didn't tell the seventh person how those departures would affect her workload ("a confounding period of silence"). She evidently made an educated guess. She was the only one still working at ThedaCare when they filed suit. All seven gave two weeks' notice (or a bit more), and a couple people filled a shift or on-call period during the week between their last day and when ThedaCare filed suit.
posted by mersen at 5:14 PM on January 24, 2022 [4 favorites]
After six people gave notice in two days, ThedaCare didn't tell the seventh person how those departures would affect her workload ("a confounding period of silence"). She evidently made an educated guess. She was the only one still working at ThedaCare when they filed suit. All seven gave two weeks' notice (or a bit more), and a couple people filled a shift or on-call period during the week between their last day and when ThedaCare filed suit.
posted by mersen at 5:14 PM on January 24, 2022 [4 favorites]
It also seems clear that Friday’s decision was not really on a decision on the merits, but instead a placeholder to maintain the status quo over the weekend until the court has the opportunity to hear testimony today.
Which makes it no less shit. As was pointed out in the plaintiff's brief, it was abundantly clear that there was no grounds for it. The judge fucked up here, period - he should have never issued the injunction at all.
posted by NoxAeternum at 5:16 PM on January 24, 2022 [12 favorites]
Which makes it no less shit. As was pointed out in the plaintiff's brief, it was abundantly clear that there was no grounds for it. The judge fucked up here, period - he should have never issued the injunction at all.
posted by NoxAeternum at 5:16 PM on January 24, 2022 [12 favorites]
Leonard French a popular YouTuber/attorney said that the emergency TRO prior to the full hearing wasn’t that unusual. His video on the hearing is here
posted by interogative mood at 5:28 PM on January 24, 2022 [1 favorite]
posted by interogative mood at 5:28 PM on January 24, 2022 [1 favorite]
Leonard French a popular YouTuber/attorney said that the emergency TRO prior to the full hearing wasn’t that unusual.
He also pointed out that made the order no less unjust. If we want to fix our fucked up courts, one of the first steps is to start identifying how they routinely act unjustly, and hold them accountable.
posted by NoxAeternum at 5:38 PM on January 24, 2022 [6 favorites]
He also pointed out that made the order no less unjust. If we want to fix our fucked up courts, one of the first steps is to start identifying how they routinely act unjustly, and hold them accountable.
posted by NoxAeternum at 5:38 PM on January 24, 2022 [6 favorites]
As been discussed thoroughly above, Ascension can't make two human beings available to another employer they don't want to work for.
posted by PhineasGage at 7:46 PM on January 24, 2022 [7 favorites]
posted by PhineasGage at 7:46 PM on January 24, 2022 [7 favorites]
mstokes650 noted the "make two employees available to ThedaCare" provision of the injunction somewhere up-thread. It kinda sounds more reasonable, but isn't okay. Ascension's brief in opposition makes it clear that - unsurprisingly - none of the workers affected are now willing to work with ThedaCare, as a direct result of ThedaCare filing a lawsuit to fuck with them.
I suppose Ascension could have assigned some of their current staff to fulfill that option instead - but that would have been disruptive too and I bet ThedaCare would have whined about not getting back their former employees.
posted by mersen at 8:02 PM on January 24, 2022 [7 favorites]
I suppose Ascension could have assigned some of their current staff to fulfill that option instead - but that would have been disruptive too and I bet ThedaCare would have whined about not getting back their former employees.
posted by mersen at 8:02 PM on January 24, 2022 [7 favorites]
The fundamental, underlying problem of course is that hospitals should not be for-profit enterprises.
posted by eviemath at 8:46 PM on January 24, 2022 [15 favorites]
posted by eviemath at 8:46 PM on January 24, 2022 [15 favorites]
Yeah, "make two of the employees available" doesn't make anything better. Employees get a say in where they work and these people chose to leave that workplace. What exactly would happen in that case if none of them agreed to it? There's nothing at all okay about a legal precedent between two corporations that includes "Corp A will make [specific people] available to Corp B"
posted by augustimagination at 8:49 PM on January 24, 2022 [8 favorites]
posted by augustimagination at 8:49 PM on January 24, 2022 [8 favorites]
This is the future conservatives want.
posted by AsYouKnow Bob at 12:15 AM on January 25, 2022 [7 favorites]
posted by AsYouKnow Bob at 12:15 AM on January 25, 2022 [7 favorites]
That's the life of many people employed by consulting companies, temp agencies, and the like. If Ascension agreed to subcontract some of its employees to ThedaCare and those employees agreed and were getting their higher pay rates, that isn't completely out of line.
What's more chilling to me is how the suit effectively discourages other employees from quitting because who knows how long they'll actually be going without pay and other employers from hiring people currently employed by ThedaCare because legal fees.
posted by wierdo at 1:21 AM on January 25, 2022
What's more chilling to me is how the suit effectively discourages other employees from quitting because who knows how long they'll actually be going without pay and other employers from hiring people currently employed by ThedaCare because legal fees.
posted by wierdo at 1:21 AM on January 25, 2022
From ThedaCare's motion:
"The departing IR team members are currently employed by ThedaCare and ThedaCare
expects their continued employment but for any improper interference"
They said the quiet part out loud. For them "at-will" means "At THEIR will"
posted by mikelieman at 5:10 AM on January 25, 2022 [13 favorites]
"The departing IR team members are currently employed by ThedaCare and ThedaCare
expects their continued employment but for any improper interference"
They said the quiet part out loud. For them "at-will" means "At THEIR will"
posted by mikelieman at 5:10 AM on January 25, 2022 [13 favorites]
The fundamental, underlying problem of course is that hospitals should not be for-profit enterprises.
I don't disagree, but in this case they're a nonprofit. To be sure, that doesn't mean they don't employ similar tactics.
posted by rhizome at 9:08 AM on January 25, 2022 [2 favorites]
I don't disagree, but in this case they're a nonprofit. To be sure, that doesn't mean they don't employ similar tactics.
posted by rhizome at 9:08 AM on January 25, 2022 [2 favorites]
"make two of the employees available" doesn't make anything better. Employees get a say in where they work
Well it does in the sense that they don't even have to work. They just have to be theoretically, on paper, on staff so ThedaCare can claim they have the staffing to keep the certification.
Also, I don't think it would be illegal for Ascension to agree to "assist" ThedaCare as a temporary subcontractor, and assign their employees to cover that work. I mean, sure, the new employees could refuse, but then they'd be refusing their new employer's assignment of work. But I'd think that kind of arrangement would come with a written agreement and some significant billing between the two organizations. (repayment settled later, possibly involving more litigation)
posted by ctmf at 10:56 AM on January 25, 2022 [1 favorite]
Well it does in the sense that they don't even have to work. They just have to be theoretically, on paper, on staff so ThedaCare can claim they have the staffing to keep the certification.
Also, I don't think it would be illegal for Ascension to agree to "assist" ThedaCare as a temporary subcontractor, and assign their employees to cover that work. I mean, sure, the new employees could refuse, but then they'd be refusing their new employer's assignment of work. But I'd think that kind of arrangement would come with a written agreement and some significant billing between the two organizations. (repayment settled later, possibly involving more litigation)
posted by ctmf at 10:56 AM on January 25, 2022 [1 favorite]
"The departing IR team members are currently employed by ThedaCare and ThedaCare
expects their continued employment but for any improper interference"
Yeah, I'm guessing someone changed "naively assumed, despite having no contract and actively making the employees unhappy," to "expects" there before sending to the court.
posted by ctmf at 11:04 AM on January 25, 2022 [1 favorite]
expects their continued employment but for any improper interference"
Yeah, I'm guessing someone changed "naively assumed, despite having no contract and actively making the employees unhappy," to "expects" there before sending to the court.
posted by ctmf at 11:04 AM on January 25, 2022 [1 favorite]
According to Ascension's response, six of the departing employees had resigned effective 1/14, and were "currently employed" on 1/21 in the sense that ThedaCare did some of their exit paperwork wrong on purpose.
posted by mersen at 1:34 PM on January 25, 2022 [4 favorites]
posted by mersen at 1:34 PM on January 25, 2022 [4 favorites]
As seemed inevitable from the beginning, the lawsuit is kaput. ThedaCare has withdrawn its claims. What a circus.
posted by prefpara at 6:29 AM on January 31, 2022 [4 favorites]
posted by prefpara at 6:29 AM on January 31, 2022 [4 favorites]
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