As we enter the seventh month of the COVID-19 lockdown, labor unions continue to find themselves increasingly more relevant, especially as many healthcare staff and professionals find their work assignments and paychecks disrupted as their employers deal with the consequences of the pandemic. While some of the largest labor unions in the nation represent nurses and other worker functions within some hospitals and health care systems, unionization has been more of the exception than the norm in pre-COVID days. Thus, given the new found popularity of these organizations, many are faced with the question of whether to unionize. Similarly, many health care employers may soon become faced with unionization efforts by their employees. This article addresses some of the key issues in unionization efforts.
Will COVID-19 Prompt Unionization in the Health Care Sector?
Labor unions began forming in the mid to late nineteenth century as a result of the Industrial Revolution. Unions are organizations that represent employee groups for purposes of collective bargaining with their employer. Employers should note, however, that employees have a right to bargain collectively even without a union. Unions may also help maintain minimum employee skills and training requirements in return for improved working conditions or increased salaries, and help shield members from wrongful termination – a shield that many healthcare workers may now be focused upon as they see disruption within the industry.
In wake of the COVID-19 crisis, labor unions representing front-line workers have aggressively advocated on behalf of their members for better working conditions. They have called attention to personal protective equipment shortages and risky staffing practices. Unions have pushed employers to change policies to ensure adequate access to personal protective equipment for their members, and to increase staff to patient ratios to help mitigate the high risk of infection. They have also educated their members on their health and safety rights during these uncertain times, to ensure those rights are enforced.
Healthcare systems that are not unionized are now beginning to mobilize to attain the same results.
Employers and employees should take note of the rights and obligations found in the National Labor Relations Act (NLRA), which regulates both union and non-union employers. The NLRA protects most private sector employees, affording them a section 7 right to organize and act in furtherance of their collective interests, including improved working conditions. As noted above, these protections may exist when the workforce is not represented by a union. Furthermore, employees have the right to form a union where one does not exist. Under the NLRA, employers are expressly prohibited from interfering, coercing or preventing employees from exercising this right. Employers who have never had a unionization effort in their workplace need to be careful not to violate these prohibitions.
These NLRA protections do not apply to federal, state and local government employees, independent contractors, and supervisors. However, some states have provided a carve-out for state and local government employees.
Florida’s “Right to Work” law under section 6 of article 1 of the state constitution provides “the right of persons to work shall not be denied or abridged by membership or non-membership in any labor union or labor organization.” The constitutional provision functions to provide all public sector and private sector employees, alike, the right to join a labor union. It is important to note that where the law affords public sector employees the right to collectively bargain through a labor union, it does prohibit them from striking.