Interns and residents who ask for overtime pay and reasonable work hours will become increasingly common now that interns, residents and fellows have won the right to form unions and bargain collectively, says one labor attorney.
The National Labor Relations Board in late November ruled that residents are employees, not students, and thus are eligible to form unions.
The ruling expands to those working at private hospitals the ability to form unions without approval of hospital administrators, a right previously available only to interns and residents at public hospitals.
About 90,000 of the country's approximately 100,000 residents and interns aren't in unions. The remaining 10,000 are in unions at public hospitals or private hospitals whose administration granted permission to organize.
"It will have a pretty significant impact," says Louis Obdyke, an attorney with Jackson, Walker in Austin, Texas, who represents healthcare employers. He says he hopes the hospitals appeal the ruling. "The labor board has never broadened the definition of employee to include students and apprentices."
The ruling will likely bring conversations about working conditions and overtime pay to the forefront, Obdyke says.
The November decision reversed a 1976 ruling in which the labor board ruled the three groups were students, not employees, and therefore weren't entitled to form unions.
Interns and residents at Boston Medical Center asked the board in 1997 to revisit its decision. Thirty years ago, interns and residents formed a union, which was recognized by administration.
The union was granted unenthusiastic recognition by the then-newly formed administration under pressure from the Boston City Council. The medical center was created through the merger of Boston City Hospital and University Hospital, which was private.
When they approached the labor board in 1997, union members wanted federal recognition and protection in case the medical center would merge with other hospitals or be bought out. Neither of those scenarios is on the immediate horizon. If that happened, the union wouldn't automatically be recognized by the administration.
In its decision, the board wrote that residents, interns and fellows were clearly employees because, among other things, they're considered supervisors in certain situations.
"Almost without exception, every other court, agency and legal analyst to have grappled with this issue has concluded that (they) are in large measure employees," the board wrote.
Addressing concerns from those opposing the union recognition, the board says, "We simply cannot say, either as a matter of law or as a matter of policy, that permitting medical interns, residents and fellows to be considered as employees entitled to the benefits . . . would make them any less loyal to their employer or to their patients."
BMC's general counsel Edward Christiansen says the decision will have little effect. "We will continue to work closely with the (union) to provide high-quality teaching programs for its members and high-quality care for our patients," he said in a statement.
The Association of American Medical Colleges said in a statement that it was "greatly disappointed" by the ruling. "The NLRB decision clearly has far-ranging, potentially damaging implications for the future of physician training in this country," AAMC President Jordan Cohen, M.D., said in the statement.
"The AAMC also strongly believes that residents should not have the right to strike and that the ability to do so . . . is incompatible with the medical education process," he says. "The NLRB decision in the Boston Medical Center case continues to erode the core principle of professionalism in medicine."
The AAMC didn't return phone calls seeking additional comment.
The AAMC allegations are not true, says Mark Levy, executive director of the Committee of Interns and Residents, a union that represents more than 10,000 interns and residents. The group brought the Boston case to the labor board.
The decision clearly states the relationship between teachers and residents and interns in hospitals that have unions hasn't changed, Levy says.
"At the (board) hearing, they couldn't come up with a shred of plausible fact that said we hurt the training situation," he says.
Levy doesn't expect interns and residents salaries, sometimes barely minimum wage, to dramatically increase. But the employer "no longer has the right to say take it or leave it" when writing contracts, he says.
In addition to salaries, union contracts address issues such as maternity leave, the condition of on-call rooms, parking, meal tickets and due process.
Levy says the union isn't "crazy. We're not going to shut a hospital or shut a program." In fact, he says, the National Labor Relations Act decreases the possibility of strikes. The act requires both sides to negotiate and go through a cooling-off period before permission is granted to strike.
In hospitals with unions, the struggles have not been geared toward salaries, says David Grande, M.D., president of the American Medical Student Association, based in Reston, Va. They've been aimed at improving work environments and patient and staff safety, he says.
The decision will lead to safer environments for residents and patients, says Grande, who is serving a one-year term as president of AMSA before starting his residency.
"The power structure in medicine has been so oriented toward hospitals," says Grande. "The residents have had little to no say in many cases, particularly in their work hours . . . In many cases, residents are required to work 100 hours a week or greater . . . Most people would agree that it's not an ideal environment for patient care."
Ruth Potee, M.D., knows that environment firsthand. She's in her first year of a three-year family medicine residency at BMC.
The Yale University Medical School graduate works between 110 hours and 120 hours a week. Potee says the board ruling will allow interns and residents to not only lobby for better working conditions but lobby the federal government on medical issues and ensure that "patients get excellent medical care," Potee says. "By the 36th hour of work, I'm not providing excellent medical care."