ThedaCare v. Ascension: At-Will Employment, Healthcare, and the Private Provision of Public Goods

Hannah Hubbard

Hannah Hubbard is a student at Harvard Law School and a member of the Labor and Employment Lab.

Wisconsin-based hospital group ThedaCare attracted national attention this January by filing for a temporary restraining order to prevent seven of its eleven-member interventional radiology specialty support team from assuming positions at fellow healthcare system Ascension. According to ThedaCare, loss of these employees would impede its ability to “provide care to trauma victims at ThedaCare’s Level II Trauma Center and would potentially force the diversion of trauma victims from a 17-plus county area to Madison, Milwaukee or Green Bay,” a “potentially catastrophic” outcome as hospitals across the state battled operational challenges associated with ongoing surges of Omicron.

The pandemic provided a critical backdrop to ThedaCare’s suit and the public’s response — while ThedaCare framed the stakes of its TRO as a matter of communal catastrophe given the ongoing public health crisis, commentators (and Ascension) drew on increasing dissatisfaction among workers about their employers’ unappreciative, even negligent, work practices to reflect the blame back onto ThedaCare. This case not only underscores the emerging tensions between at-will employment, an increasingly fluid labor market, and employers’ unwillingness to meet the demand for better working conditions, but also calls into question the utility of relying upon private employers to provide fundamental services like emergency healthcare in the first place.

Despite their apparently pivotal role in ThedaCare’s ongoing operation of a Level II Trauma Center, each of the seven team members (four radiology technicians and three nurses) was employed at will, meaning that they were free to leave their employment at any time for any or no reason without facing any legal repercussions. It also meant that they could have been fired at any time for almost any reason (or no reason at all), or could have had the terms of their employment changed at any time with no notice or consequences. Still, ThedaCare’s complaint — alleging tortious interference with contract — claimed that Ascension had “poached” its employees, jeopardizing the health of high-risk stroke and trauma patients, and requested that the court intervene to halt the employees’ transition to Ascension for 90 days in order to permit ThedaCare time to find replacement staff. Outagamie County Circuit Court Judge Mark J. McGinnis granted ThedaCare’s TRO on Thursday, January 20th, before ultimately dismissing the order on Monday the 24th.

While ThedaCare’s Complaint portrayed Ascension as having “poach[ed] the resigning IRC team members” with the knowledge that doing so “would cripple ThedaCare’s operating ability to the derogation of the public interest,” Ascension’s brief painted a starkly different picture. Ascension described ThedaCare as having “invented the emergency ostensibly justifying this lawsuit” through poor management with “only itself to blame for failing to maintain a competitive working environment for its medical staff.” Ascension’s brief emphasized the fact that the hospital had not intentionally targeted ThedaCare’s employees, who had chosen to apply for open positions at Ascension given their increasing dissatisfaction with ThedaCare’s management, including chronic underpayment, firings for trivial policy violations, and an unwillingness to match the offers extended by Ascension or other employers. These assertions were backed by employee testimony heard on the 24th, which highlighted ThedaCare’s seeming indifference to the workers’ contributions up until the filing of this suit and its refusal to match the pay and on-call time offered by Ascension. Ascension’s brief also contested that the transfer of these seven workers would lead to ThedaCare’s “hyperbolic tale of a crumbling health-care system,” but noted that ThedaCare, as a private entity, was not in a legal position to seek injunctive relief on the public’s behalf in any case. Although Judge McGinnis initially granted ThedaCare’s TRO given the “gravity of the situation” laid out in its complaint, he lifted the injunction following Monday’s hearing and advised ThedaCare to move forward with alternative staffing solutions.

These threads were picked up in news outlets and discussion boards across the country at the same time that they were being aired in court — after ThedaCare’s TRO was granted, members of Reddit’s r/antiwork (an online discussion forum for “those who want to end work” and related subjects) noted how it seemed to fly in the face of at-will employment; this argument was further developed in articles such as those published in the Los Angeles and New York Times, and by legal academics such as Professor Sachin Pandya. Many agreed that ThedaCare’s request had little if any legal footing; as Professor Pandya concluded, ThedaCare’s TRO would probably not have survived appellate review as it faced a “serious Thirteenth Amendment problem” since courts interpret the Amendment to prohibit the state from threatening criminal sanction to coerce employees to remain with their employers, including court injunctions backed by the court’s power to charge individuals with contempt.

While characterizing ThedaCare’s suit as extreme and nonviable, these pieces also acknowledged how it is representative of contemporary labor trends. Writing for the L.A. Times, columnist Michael Hiltzik stated that ThedaCare’s seven team members were “plainly . . . participating in the Great Resignation” — that is, the rising trend of workers voluntarily separating from unsatisfactory positions for “greener employment pastures.” Meanwhile, Business Insider writer Allana Akhtar noted how ThedaCare’s workers are in good company with other healthcare professionals who report feeling “unsupported by hospital administrators” as the pandemic rages on and increasingly leave their jobs or the field altogether in pursuit of better working conditions. According to a special report from Morning Consult, 18% of healthcare workers have quit their jobs during the COVID-19 pandemic, while a third of those who stayed have considered leaving — and according to its survey, this “exodus” has been largely driven by “the pandemic, insufficient pay or opportunities, and burnout.” At the same time that these workers are asserting their right to immediately depart from private employers — a right protected by the at-will employment scheme — the Great Resignation has deeper public implications as hospitals across the country are inundated with COVID-19 patients while coping with an unprecedented nursing shortage.

ThedaCare may seem simply like an unscrupulous employer taking advantage of at-will to discharge its employees when it wants to but litigating to retain them when they leave of their own accord. Yet, ThedaCare’s complaint raises an important question: what if it had been true that losing seven of its IRC team members would have forced diversion of trauma victims miles out and cost numerous patients’ lives?

This case reveals at least two flaws in a system that relies upon the private employment of at-will workers to provide key public services especially at times of public emergency: First, employers, emboldened by the historic leverage that at-will employment has granted them over their employees, may manufacture public crises through their own miserly mismanagement. Second, even insofar as the movement of particular employees could legitimately cripple vital healthcare systems, their employers, as private entities, are not legally enabled (let alone obligated) to pursue court intervention on behalf of the public. If ThedaCare hadn’t been hyperbolizing about the lives on the line with this decision, what would have been the right outcome? Neither sacrificing the health of stroke and trauma patients to discipline ThedaCare nor forcing employees to labor under poor working conditions to save them seems defensible. ThedaCare’s complaint, flawed as it was, should prompt us to think about a more structural solution to this dilemma.

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