Healthcare Unionization: Navigating the New Labor Landscape

As we have already reported, NLRB may as well stand for “No Longer Relegated to the Backburner.” Unions and the National Labor Relations Board are active all across the country and in all types of industries. The healthcare industry is no exception. These changes go beyond impacting the nursing staff or environmental services staff; they are affecting physicians as well. Recently, the National Labor Relations Board certified the union election in Minnesota of more than 130 Allina doctors at Mercy and Unity Hospitals. This certification and election result may be a harbinger of changes to come. Healthcare employers need to follow the legal landscape surrounding these important union updates or risk being caught off-guard in this new labor environment.

As in other industries, concerns about burnout, increasing demand for services, and a younger generation asking for more work-life balance should not be ignored. Asking younger physicians who feel burnt out or stressed to accept that the practice of medicine is simply a “calling” is not a good labor relations tactic. If employers refuse to answer these calls for help, Union infrastructure is ready to listen to physicians who could be feeling unheard.

Healthcare professionals should anticipate unionization efforts and ensure their workplace practices are union neutral. The recent NLRB opinions are good starting points for any in-house risk manager or corporate counsel for hospitals that have not predicted or anticipated this sudden change in the union landscape.

Restrictive covenants will be placed squarely in its crosshairs if and when physicians unionize. The NLRB General Counsel has cautioned that overbroad non-competes are “unlawful because they chill employees from exercising their rights under Section 7 of the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions.” These covenants also may interfere with employees’ rights to participate in collective bargaining.

These restrictive covenants, common in the healthcare industry, are designed to prevent the poaching of valuable talent and protect patient relationships.

Even if your hospital or medical group is not facing a union campaign, overbroad restrictive covenants should be revised to avoid employee dissatisfaction and potential legal challenges. This includes narrowly tailoring these provisions to your organization’s objectives and avoiding unduly restricting a physician’s rights. If this language has not been updated in a while, now is a great time to consider whether the contractual language is consistent with state and/or recent NLRB opinions.