A ruling Thursday by the National Labor Relations Board could complicate relations between healthcare organizations and their workers employed by staffing agencies.
The board ruled that workers employed by a staffing agency are jointly employed by the agency and the organization where they're working. That means those organizations should be involved in any collective bargaining with the temporary workers and could be held liable for unfair labor practice cases filed with the federal government.
The American Hospital Association was one of several national associations that filed a friend-of-the-court brief asking the NLRB to continue its longstanding standard of considering the workplaces separate from the staffing agencies unless they exert direct and significant control over the workers. Most staffing firms declined to comment on the ruling, as did many healthcare industry trade groups.
Healthcare organizations are major customers of staffing firms. The NLRB says 2.87 million American workers were employed in temporary staffing agencies as of August 2014, and 9% of all temporary staffing employees worked in healthcare as of last year, according to the American Staffing Association, a trade group.
But the majority of healthcare temporary staffing agencies aren't unionized, unlike some of the facilities where they work. This rule could open them up as potential organizing tactics because a union that gains control of a staffing agency can now have meaningful influence on its clients, said Bob Bruno, a professor of labor and industrial relations at the University of Illinois Urbana-Champaign.
“They now become a really attractive target for organizing because what union wants to unionize one shop when it can organize the whole industry?” Bruno said. “If you could successfully unionize these workers you could reach thousands of hospitals.”
The problem then becomes that hospitals have yet another union to negotiate with. Their permanent nurses could be in a different union from the temporary staff, which could lead to a merger or cooperative bargaining among unions, Bruno said.
The American Staffing Association, however, doubts the ruling will lead to an increase in unionization among temporary workers. “Prior board decisions that effectively made it easier for temporary workers to unionize did not demonstrably result in increased unionization of such workers, and that largely remains the case today," ASA general counsel Stephen Dwyer said in a statement.
National Nurses United, which represents nearly 185,000 registered nurses interpreted the ruling more broadly to suggest that large health systems can no longer skirt liability by blaming their local managers for unlawful labor practices. NNU lead attorney Pam Allen said investor-owned chain Community Health Systems, a frequent target of the union, is a major culprit of that practice.
“We are hopeful this ruling will help crack down on a clear abuse that tramples on the rights of workers and the interests of patients, and hold the CEOs, who dictate employment terms, accountable when they, and all the subsidiaries and contractors whose policies they dictate, violate basic workplace protections and the right of employees to act together to protect their interests,” the union said in a statement.
Steve Bernstein, regional managing partner for the Tampa office of labor law firm Fisher & Phillips, said the ruling at least means employers need to get serious about scrutinizing the service agreements they hold with their staffing agencies and other vendors.
“It would be wise to continue monitoring developments in this area because we see this as the tip of a bigger iceberg,” Bernstein said.
The ruling also affects franchise workers. Although that model is much more prevalent in retail and restaurant industries, some home care agencies and urgent care centers employ the franchise model. Under this week's ruling, those workers can collectively bargain with the local franchise and the larger corporate entity.
