Banding together

By Ruth Carol, Contributing Writer, October 1, 2024

Physicians are increasingly adding a new role to their CV, but this one has nothing to do with the specialty they’re in or the title they hold at their organization. The role is union member.

The National Labor Relations Board (NLRB) has represented workers in myriad industries since 1935 when the National Labor Relations Act (NLRA) was passed. But historically, physicians were not one of those industries. What’s changed? Quite a bit.

Ten-plus years ago, physicians began shifting from independent practitioner to hospital-based employee. As hospitals purchased physician practices and groups, health systems acquired the hospitals. Mergers and acquisitions further consolidated the number of health systems. Today, health care markets across the country are dominated by a few large players, whose reach continues to expand. More than half of all physicians are now employed, according to the latest American Medical Association (AMA) Physician Practice Benchmark Survey. Moreover, younger physicians are more than twice as likely as older physicians to be employed by hospitals.

In the case of unionization, it’s residents and fellows who have largely led the charge. While many physicians speak of their long grueling hours of training almost as a rite of passage, the younger generation of physicians facing increasing workloads and colossal student debt see unions as a means to increase their pay, gain valuable non-cash benefits, and improve working conditions.

Union basics

Basically, collective bargaining rights in the United States are supported either by the NLRB or state laws, depending on the physician’s employment status, explained Diomedes Tsitouras, JD, executive director of the American Association of University Professors – Biomedical and Health Sciences of New Jersey (AAUP-BHSNJ). The NLRB governs collective bargaining in the private sector. Employed physicians who are not supervisors have the right under the NLRA to form or join a union and bargain collectively. Physicians employed in the public sector are governed by state laws, which vary across the country.

At first, the NLRB considered residents to be students, and therefore unable to collectively bargain under the NLRA. But in 1999, the NLRB ruled that residents should be considered employees when it comes to federal labor laws and should be allowed to form and/or join a union.

Independent physicians are prohibited by federal antitrust laws from bargaining collectively with an employer or third-party payer about reimbursement issues, noted Rob Portman, JD, MPP, principal at Powers Pyles Sutter & Verville PC in Washington, D.C. “They can lobby and educate, but they can’t band together and negotiate collectively with Medicare and private payers,” he said.

The AMA supports the right of physicians to engage in collective bargaining, and in fact, it has worked to expand the number of physicians eligible to do so under federal law. As an example, the AMA supports efforts to narrow the definition of supervisors, allowing more employed physicians to be protected under the NLRA. AMA policy, however, maintains that physicians should neither form workplace alliances with those who do not share their ethical priorities nor use the threat of striking as a bargaining tactic. AMA policy also cautions physicians that certain actions may put them or their organization at risk of violating antitrust laws.

Approximately 7% of physicians practicing in the United States today belong to unions, according to the AMA. That represents a 26% increase from 2014. The number of residents in unions has doubled in three years, according to CalMatters.

Why the push for unionization now?

Major drivers for unionization include burnout and loss of autonomy, Tsitouras said, adding, “Doctors are at their wits’ end.” The corporatization of health care means focusing on productivity and the bottom line. Productivity requirements dictate the number of patients physicians must see in an hour, while electronic health records are eating away additional hours per week when they are not with patients. Doctors are being worked harder and harder to meet those expectations, which are becoming increasingly unrealistic, he said.

Physicians want to have a voice, but they are being removed from a lot of the decision-making, especially in big health systems, Tsitouras said. “The days when a community doctor in private practice could be on the same level as the local community hospital are long gone,” he added. Lacking control or influence over key decisions that affect physicians and their patients undermines their autonomy and impacts the physician-patient relationship. “A feature of this power imbalance is that doctors do not feel listened to; nor do they have control over the practice of medicine. All of this contributes to moral injury,” he stated.

“Today, there is much more pressure to perform as a physician,” said Amy S. Pappert, MD, FAAD, associate professor of dermatology at Robert Wood Johnson Medical School, who has been an AAUP-BHSNJ member since 2004 when she became a full-time employee. In addition to seeing patients, as a professor, she trains residents, conducts research, and authors papers for publication. But often the latter tasks are overlooked and uncompensated, she said. Engaging in discussions with colleagues about issues such as workload, staffing, and pay equity helps her understand the perspectives of other faculty. Dr. Pappert believes in the mission of the union, which she says looks after her interests. Years ago, Dr. Pappert had an issue regarding pay inequity, which the union empowered her to resolve. “Now more than ever, because of the stratification of the practice of medicine within a larger institution, it’s important to be part of a union,” she said. “It helps balance the power.”

Independently bargaining with a large hospital or health system in a concentrated market can be challenging as these dominant players have little pressure to negotiate competitive wages and benefits or address workplace safety issues and adequate staffing levels. Adding insult to injury is the non-compete clause in many physicians’ employment contracts that contribute to the employer’s bargaining advantage. Non-compete clauses affect 37-45% of physicians, according to the AMA. (Although the Federal Trade Commission voted this past April to ban non-compete agreements for workers in for-profit companies, including employed physicians, a federal judge barred the rule in August, essentially blocking the ban.)

“Now more than ever, because of the stratification of the practice of medicine within a larger institution, it’s important to be part of a union. It helps balance the power.”

With 10 years’ experience as employees, physicians are starting to look at whether unions can be helpful to them in the same way they were for nurses, Tsitouras said. “Collective bargaining can help change things you can’t change by yourself,” he added.

In addition to the concerns that physicians have, residents have heightened concerns about salary, benefits, and job security. Maximum allowable work hours are covered by the Accreditation Council for Graduate Medical Education as it oversees residency programs, but salaries are not. The average first-year resident — whose salary is based on the training year, not the specialty — makes about $60,000, according to the Association of American Medical Colleges (AAMC). With an 80-hour work week, that translates into less than minimum wage in some states. The typical medical student graduates with roughly $200,000 in medical education debt, the AAMC reports.

“Many residents can’t afford to live in the cities where they work,” said Jonathan Jaffery, MD, chief healthcare officer at the AAMC. They have to live an hour away while working 80 hours a week plus being on call.

There are still lingering effects of COVID that have left many residents feeling burned out and unsupported. “Because of their dual role as learner and employee, residents were sometimes not part of discussions during the hectic pace of changing protocols during COVID,” Dr. Jaffery said.

Additionally, residency can be challenging because it occurs during prime childbearing-age. There has been a lot of positive movement on parental leave, he said, but those policies vary from institution to institution.

Because today’s technology makes it so much easier to connect, residents and students talk to all their colleagues across the country, Dr. Jaffery said. “When I was a resident, I might occasionally talk with friends at other residency programs, but there was no social media. Today, these conversations are occurring at the national level. There are a couple of high-profile instances posted on Instagram and suddenly residents are all talking about them,” he noted.

Unionization efforts heat up

It seems like every week there is another group of physicians and/or residents who have launched a successful unionization campaign somewhere in the U.S. The following is just a handful of union filings that occurred in 2024, to date:

• In May, more than 400 physicians at Christiana Hospital, Wilmington Hospital, and Middletown Free-standing Emergency Department — all of which belong to the ChristianaCare health system in Delaware — filed to unionize.

• In April, more than 1,000 residents and fellows at the University of Chicago Medicine filed to join a union while 400 residents across Kaiser Permanente’s Northern California system filed to unionize.

• In January, 1,300 house staff at Northwestern Medicine in Chicago voted to join a union.

Last year, residents at Detroit Medical Center hospitals, George Washington University, Mass General Brigham, Montefiore Medical Center, Penn Medicine, and Stanford Medicine voted to unionize. About 550 physicians and non-physician providers at Allina Health in Minneapolis filed to unionize, creating what could be the largest union of private-sector clinicians in the country.

In general, the process to unionize first involves building support among coworkers through getting union cards and then formally petitioning for a collective bargaining status, Tsitouras explained. Residents/physicians can choose to organize under an existing national union or form their own union without affiliation with a national one. Under most state and federal laws, physicians must be legally considered employees in order to form unions and be eligible for collective bargaining. In the private sector, they must submit a minimum number (usually 30%) of union cards to the NLRB, which indicates interest in forming a union. If the NLRB deems there is enough interest and the unit is properly constituted, the NLRB will hold an election at the workplace. If a majority of residents/physicians cast votes in favor of forming the union, the union would be certified.

Public sector processes are similar but may run more easily, depending on the state. For instance, in New Jersey, if the petitioning physicians can show a majority of physicians on union cards, the unit can be certified in absence of an election in a process known as ‘card-check,’ he said. Once the union is certified as the exclusive representative, the union and employer representatives would negotiate a contract concerning various terms and conditions of employment for the residents/physicians.

Labor law is old and outdated, sometimes making it difficult to form a union, Tsitouras said. In New Jersey, the laws make it easy to form a union, but every state is different.

Some hospitals or health systems may try to use the law’s weaknesses to prevent union formation or delay it. If a union has been certified, the hospital/health system legally must bargain with it, he said. Not doing so would be unfair labor practice.

“I wouldn’t say that collective bargaining through a union is always better,” Dr. Jaffery said. Many institutions have sat down to address issues with house staff directly, avoiding the formation of a union.

Benefits and unintended outcomes

Tsitouras views collective bargaining as a tool that helps equalize the power imbalance. It helps doctors have a better work environment that supports work/life balance, and to be treated and compensated fairly, he said. Work hours, pay, bonuses, disability benefits, and non-compete clauses are just a few of the things that unions can bargain for. “As a whole, physicians come out ahead, especially over time, with collective bargaining,” Tsitouras stated.

The biggest benefits of unionizing for general surgery residents, faculty, and staff were increased salary stipends and/or housing stipends, according to a recent study published in JAMA Network Open. Other benefits were meal and educational stipends, subsidized parking, medical requirements, licensing or board examination registration fees, and fertility coverage. But there were unanticipated consequences, as well, including losing some existing benefits and flexibility in meeting individual needs.

One of the challenges of unionizing is that all negotiations must go through the union, which may not offer much flexibility, Dr. Jaffery said. For example, he knows of residents who were no longer able to serve on different committees at one institution after unionizing because that was not part of the negotiations.

Residents have seen improved benefits such as housing support, childcare, and parental leave because of unionizing, Dr. Jaffery noted. Better working conditions can be a mixed bag, though. Sometimes, it seems more of a trade-off than an improvement. “Once it’s done, people realize it hasn’t changed as much as they thought it was going to,” he said. A 2019 study, also published in JAMA Network Open, supports Dr. Jaffery’s assertion. Unionized surgical residents were more likely to get housing stipends and a longer vacation but did not experience any differences in burnout, suicidality, job satisfaction, duty hour violations, mistreatment, salary, or educational environments.

Controversies and criticisms

There are concerns that unionizing could undermine the relationship between residents and the physicians who train them. This is a classic argument that hospitals use: “unions are a third party that come between us and our people,” Tsitouras said.

The AAMC, which does not have a formal position on residents unionizing, emphasizes that residency is a unique circumstance because residents are both employees and learners, Dr. Jaffery said. Workplace issues, which seem to be where the residents’ concerns lie, should be addressed by the hospital/health system. Concerns about the educational experience must be addressed with the program director, not the institution. “Program directors take their responsibility around medical education very seriously. They want to make sure that the residents they train are board-eligible and ready for practice when they leave,” he said. “If a third party, that is a union, starts talking to program directors about the educational experiences, that’s a potential conflict area.” In the 2024 study, leaders perceived that union executives encouraged residents to engage in conflict rather than resolve issues directly and collaboratively. Conflicts about clinical educational assessment were particularly contentious, the authors noted.

Residency is also unique because it is time limited, Dr. Jaffery stated. Residents train at one institution for three to seven years, depending on their specialty. “You’re negotiating for people and then you leave. But you don’t know whether the same issues will be important to those who come after you,” he said.

There are also concerns that striking can undermine the trust of patients and communities. Historically, it’s very rare for physicians to strike, according to the AMA. Moreover, patients are protected by NLRA requirements that hospitals be given a 10-day notice of any strike or picketing, so they can make arrangements for ongoing patient care in the event of a work stoppage.

Physicians can do other things than striking to pressure a hospital, Tsitouras said. “When our union called a strike last year, we asked people to refrain from academic work for a week, nothing to do with patient care,” he said. “Nobody wants to put patient care at risk.” Dr. Pappert doesn’t think she would ever be able to strike. “The union is important but patient care is more important,” she said. Similarly, Dr. Jaffery has not heard of any residents striking or engaging in any other activities that would threaten patient safety or clinical care. He heard that the house staff at one institution walked out for 10 minutes. “It’s a professional way of sending a message,” Dr. Jaffery said.

The message is loud and clear that unionization in medicine is here to stay. “Unions are a way for doctors to reclaim their voice,” Tsitouras said. “Collective bargaining is a powerful tool,” he added.

Dr. Jaffery believes that collective bargaining will grow in the coming years. “Medical students are having these conversations going into residency,” he said. “There is a whole generation of residents who don’t think twice about being unionized. They will enter practice, most likely as an employed physician, already used to the physician unionization model.”

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