Increasing Unionization Efforts in the U.S. Labor Market and Healthcare Sector

In recent months, the United States has seen workers’ unionization and collective bargaining efforts gain momentum across industries, including healthcare. Current reporting attributes this growth in organized labor activities to the tight labor market, heightened risks to some workers during the pandemic, a favorable political environment, and increased awareness among workers. At the same time, healthcare workers in particular are reporting higher rates of burnout, depression, and stress, causing some to consider leaving the industry.

Given recent trends, it is possible that those workers who remain in the healthcare sector, regardless of their roles, may use unionization and the resulting collective bargaining in an effort to improve their working conditions. In 2022, there were reports of physicians, nurses, nursing assistants, care technicians, and other healthcare industry workers seeking to unionize and, once represented by a union, collectively bargaining with their healthcare employers. Even if your organization only employs physicians or mid-level providers, it is worth thinking about this risk given recent market developments.

What Drives Unionization Efforts at Healthcare Organizations

In our experience, the biggest determinative factors that have caused successful union efforts are specific to an employer’s culture, responsiveness to employees’ needs and concerns, and overall working conditions. We have seen employers become subject to workers’ collective action in response to one or more of the following employer actions:

1. Failure to objectively assess employees’ performance or showing favoritism;
2. Expecting over-qualified or higher paid employees do to lower paid or skilled work;
3. Lack of continuing courtesy, respect, and fair consideration from management;
4. Lack of communication or poor communication, leading to feelings of insecurity about working conditions, such as pay, benefits, scheduling, approval of time off;
5. Failure to respond to employees’ questions, problems and complaints; and
6. Agreeing with employees’ complaints about policies or working conditions, but responding that leadership does not have the power to make changes or improvements.

If your organization has issues in any of those areas, or if employees complain of feeling alienated, disrespected, frustrated, or that they are not being listened to by leadership, now is the time to take three key steps: (1) assess your risk factors, (2) understand what is and is not acceptable for employers in responding to collective action efforts, and (3) develop a proposed response plan.

Three Key Recommendations for Employer Preparedness

Whether or not your healthcare organization has seen these activities yet, we recommend that leaders prepare themselves and their organization for this situation in three key ways:

1. Assess Your Risk Factors. First, take stock of how your employees are feeling and what risk factors, if any, are present in your workplace that may drive employees to undertake collective action efforts. Consider taking a “listening tour” to hear employees’ concerns or commission a compensation and/or satisfaction survey to see where your organization stands in your market. For example, if your pay is below market, or if your staffing is inadequate, or employee complaints are common around any other specific issue(s) (including those outlined above), consider methods to improve in those particular areas. In addition, communicate clearly and effectively with employees about meaningful improvement efforts your organization will take in response, and timely follow through.

2. Know Your Rights and Duties as an Employer. Second, develop a baseline understanding of what employers may and may not do in response to collective action and unionization efforts from all or a portion of their workforce. By law, an employer has a right to its own free expression and to communicate with employees about the facts, law, opinions and experience related to a proposed union or unions at large. However, an employer and its management may not engage in any “TIPS” in response to worker efforts.

Specifically, management cannot:

T: threaten consequences for an employee’s union views or involvement;

I: interrogate any employee about union activity;

P: promise benefits to employees who do not engage in union activity, or

S: surveil/spy on employees’ activities.

3. Plan Your Response in Advance. Third, develop a proposed plan for your organization if and when collective action and unionization efforts begin among your employees. If possible, the best time to think about this issue is before it comes to your organization. Experienced counsel can help you (a) plan on legally appropriate ways to identify and respond to early, pre-unionization employee efforts, and (b) identify your best options in the event of a successful union organizing campaign that results in collective bargaining negotiations.

What if Our Business Operates in a “Right to Work” State?

The considerations above still apply to your organization. While 27 states have banned union-security agreements by passing “right to work” laws, unionization efforts can still take place in those states. The “right-to-work” element simply means that in those states, if a union exists in a given workplace, its collective bargaining agreement with the employer will apply to all employees, not only union members. To say that differently, in a “right to work” state, workers have the option to join a union and pay dues, but are not obligated to participate in a union that is active at their workplace. 

Final Thoughts

Clinical and non-clinical healthcare workers may engage in unionization efforts in response to particular factors in their working environment. At this point, employers are wise to assess how their programs and policies fit the needs and desires of their particular employee population. Doing so can increase workers’ buy-in to an employer’s organization, optimize performance and engender goodwill. In this market, doing so may also have the added benefit of deferring or delaying unionization efforts that are likely to pose additional cost and complexity for healthcare organizations.