Episode Transcript
[00:00:02] Speaker A: There was a study that surveyed employed physicians. The main focus was, they feel like they're losing autonomy. They're losing autonomy over medical decisions. But one of the things that they found in that survey was that 44% of the physicians would unionize if they could, and by the way, legally they can. So I don't think there's a workplace that's immune from it.
[00:00:28] Speaker B: Hello and welcome to the Alvarez and Marcel Healthcare Industry group, Human Capital and Workforce Management podcast. In this podcast series, we discuss the human capital perspective of the healthcare industry. I'm Bianca Briola, leader of the healthcare, human capital and workforce management practice, and I'm joined today by Sara Scubas and Michael Bertandini, co leaders of the healthcare industry group at Jackson Lewis. Jackson Lewis is a law firm that focuses on labor and employment law with offices throughout the United States. And Michael and Sarah, thank you so much for joining us. Appreciate your time. Love that you could be our guest today. And just so I can clarify, you all, like us, represent management. Is that right?
[00:01:13] Speaker A: That is right.
[00:01:14] Speaker B: Okay, so our conversation today will be from that perspective. Obviously, our clients, they have various operational, legal, strategic issues that they're navigating. So we are advisors to them. But there's been an incredible surge in growth of union activity. The rapidity of union activity over the past few years, particularly in healthcare, has been noteworthy. So I thought I had to talk to you. I know this is an area of your expertise for the both of you, so it's a good opportunity to chat.
[00:01:45] Speaker C: Mike and I work together to manage the firm's healthcare industry group. So we focus a lot on the, the issues unique facing healthcare. And we're really excited to talk about one of those issues, as you pointed out, which is union activity and what we've been seeing of late and what we forecast as we continue into 2024.
[00:02:08] Speaker B: Mike, do you support management across the healthcare continuum so providers, payers, technology, med device, pharma?
[00:02:18] Speaker A: Yes, that's right. Across all the entire spectrum.
[00:02:22] Speaker B: Okay, so that's helpful. I'd like for us to think through this problem, or rather this topic from that lens across the continuum of healthcare. But I know so many of us associate union activity with the provider side, and I'd really like to know more, Mike, about in the healthcare space, where are unions found geographically, organizationally, what is kind of the state of the union of unions in healthcare?
[00:02:50] Speaker A: Well, the state of the unions in healthcare is quite strong, and I think that's a trend that's only going to continue.
It's a great question when you ask about where across the continuum are we seeing this? I mean, everyone thinks about nurses in the acute care hospital setting, and certainly that's active. But where we're really starting to see a lot of activity that's new is in the white collar professions. And when I say white collar professions, I'm talking about research techs, you know, working on the bench. And we're talking about medical residents. We're actually talking about full fledged physicians. But the white collar organizing movement, I think you can sort of track from, if you go back to the tail end of the Obama administration. Back in 2016, the National Labor Relations Board came out with a decision called Columbia University in which they said, well, of course graduate students can unionize. Of course they're employees. And that kicked off a whole wave of grad student organizing that stopped during the Trump administration because they were concerned that the Trump majority National Labor Relations board would overturn that decision and make it impossible for grad students to organize. But as you look at that with the Biden administration, it's going strong again.
So the idea of wearing a white collar and being in a union is not strange anymore. And you can also look at adjunct faculty, which is a movement that also sort of started in the first half of the 2010s, if you will. So there's a great precedent for professionals on a salary basis, working good jobs, requiring higher education. Now being in a union, and I think that's going to continue on.
[00:04:36] Speaker B: Mike, what's the process to unionize? You know, are there restrictions on the number of employees? Can you give us, like, basics here, the union 101?
[00:04:46] Speaker A: Yeah. So let's focus on the private sector. So we're not going to talk about governmental entities. We're going to talk about private employers. There's no minimum number. I guess there is a minimum number. It's two, generally speaking, two. And there's no maximum number. So unions will pick and choose what's called an appropriate unit for organizing. And that appropriate unit is one in which the employees are working together, usually at the same site. They have to work together to perform their jobs. They report up to a common line of management, things of that nature. There's two main ways of doing it. The more common way is the employees, or the union, rather, files a petition for an election. All that requires is 30% support from that bargaining unit. Right? The other way. And we're seeing more of this in the wake of a decision that came down last summer from the National Labor Relations Board. The other way is if a union claims it has more than 50% support. It has majority support in that bargaining unit. They can demand that the employer recognize them as the union, and the employer could lawfully do that without even holding an election. So those are the two ways they are employee driven. Both ways. Right. Both require a showing of interest by the employees in that unit.
[00:06:06] Speaker B: You're hearing about Amazon employees, Starbucks employees, and others retail. They're growing in popularity, or unions are growing in popularity right now. And my natural jump is, oh, it's a generational thing. But, you know, I don't know. I don't know enough about this. Why are unions growing in popularity right now? We're so different than we were in the fifties. So what's happening right now?
[00:06:31] Speaker C: It's a great point. You're right. They serve a different purpose. And, you know, I love pop culture. If you watch the Oscars ceremony this year, right, right at the beginning, there was a shout out after the film and tv and writers went on strike this summer of solidarity. It's like this new wave in sort of why it's popular is a harder question to answer. But we know we're seeing it in our oscars. We're seeing it in approval ratings. While it went down slightly from 2022, the Gallup poll says there's still one of the highest approval ratings in the US for unions. I think it was at 67%. So just down a little bit from where it was at 71 point percent. We've got a very union friendly leadership in government. As Mike was saying, we often see tides change depending on who's in leadership. And you're right, it's not sort of the 1950s leadership. You know, as Mike noted, we're not seeing the same types of employees who are driving unionization efforts, whether it's sort of the white collar or in the industry, the white coats or it may actually be Gen Z, a younger workforce is actually driving a lot of it. Employees are more than ever aware of their legal rights. And so, contrary to what drove historical unionization efforts, which was the lack of regulatory compliance around certain rights, we have a lot of those employment regulatory frameworks in place because of state and federal laws that didn't exist. But we also have a really active workforce. People who are educated, they're aware of their rights. And I think that's certainly a contributing factor coupled with a very pro union mentality in the US, I think that's what we're seeing. Those two things collide.
[00:08:24] Speaker B: So education and then proactivity around that. Education seems to be a driver. And we saw a record number of work stoppages, I think in 2022 or 2023. And you're right, Mike, they tend to be in more of the acute care setting. So I think they were highly concentrated in California, mostly hospitals.
But given the current pressures on healthcare workers, I'm curious if you're getting to the point of a work stoppage, what kind of demands are unionized workers focusing on? What are the things that they are pushing on that have led to a work stoppage, a strike?
[00:09:05] Speaker A: So one of the things we're seeing a lot of now are demands around staffing. And, you know, that's always been a patient safety issue, but it's now coupled with a burnout issue. That's the way the unions are portraying it. And when you just look at, you know, how many contract workers hospitals had to bring in during the pandemic, and we've been slow to come out of that. We've lost a lot of nurses and other healthcare professionals, and that's not lost on healthcare unions. So what they're looking for is a couple of things. One, they're looking for minimum staffing levels, and they want those staffing levels to apply to employees. They want the hospital to employ directly more people. And the other thing they're looking for is more money. And they have two arguments there. One is we're still, we weren't properly compensated for working on the front lines through COVID. And, oh, by the way, shore inflation has come down. But have you been to the supermarket lately? It's still really expensive. Those are, I think, the two main issues that we're seeing that are driving strike activity or at least threatened strikes.
[00:10:13] Speaker B: I agree with you, and I've had an unpopular opinion, probably for management. When we were starting to see massive wage inflation, I was calling it like the great reckoning. Right? It's finally individuals are organizing, wanting to get paid a living wage, and that hasn't changed. The expectations about compensation are still very high. It's been very difficult to wind back many of those pay policies that organizations brought forward in the middle of COVID and beyond. So it all kind of makes sense. Sarah, I do have a question for you, though. I know that, Mike, at the top of the conversation, you had mentioned about white collar unionization.
I'm really interested in beyond nurses and techs. We're starting to see doctors and residents unionizing a lot now, and I'm assuming that that's, Mike, what you meant about white collar as well, that's been different for us, and it's really picking up steam. So what are some of the challenges and I guess the opportunities that this is presenting for providers and unions now that they're starting to organize with a different job classification, a different group of.
[00:11:27] Speaker C: Individuals, I think it takes a lot of creativity and reevaluating as an employer how you're assessing potential organizing from what you may have done in the past. It's kind of a new world, right? And so when you have a different type of person, maybe somebody who has more resources, they are advanced education in some respects. It's just a different audience than what we're traditionally used to when we talk about organizing in healthcare so often. I know Mike and I talk about this a fair amount out. You have perhaps physicians who had to work really long hours through their own residency experiences or put up with what they've tolerated as really challenging work environments. And now you have a generation that isn't saying they're willing to do that. And so really understanding your employee base, understand what engages them, understanding how to communicate with them, is really posing a of challenges for how you address sort of the new group of people who are organizing and or existing groups who are organizing in a different way. And I tend to think of it a little bit more simplistically because we often are pulled in to do preventative work or if there is potential organizing, what can employers do? What can't they do? Not just legally, but what should they be doing? And it's kind of a silly quote, but if you'll bear with me, Bianca, to quote legally blonde, she talks about exercise gives you endorphins. Endorphins make you happy. Happy people just don't shoot their husbands well here, right. Unhappy employees are going to organize, or more likely, and so really looking at what's going to be driving those employees to potentially organize. And when you're looking at white collar or residents, it may be different motivations than what we're typically looking at. I know Mike's really in the weeds on these topics, too, and probably has a lot care as well.
[00:13:38] Speaker B: So, Mike, are these providers looking for the same stuff, you know, better work life balance and compensation or staffing? What is it that they want?
[00:13:48] Speaker A: It's a lot of the same stuff. And it's, you know, Sarah hit it on the head because we do talk about this all the time. I read the other day, we've got five generations in the workplace right now, and that's the first time that's ever happened. So if you're thinking as a physician my age about what it was like to train as a resident, you've got the wrong lens. I mean, you just do. I mean, what are these workers looking for now?
They're looking for an employer that is supportive. They're looking for an employer that pays a living wage. And that's mainly if you look at the resident organizing. I mean, many of the top residency programs are located in some of the highest cost of living cities, so they want more money. Childcare, the cost of childcare is a huge issue. Access to mental health is a huge issue. All of that eventually ties down a comp. And as you start looking both at the residents and the physician organizing, it's also about paperwork.
It's about how do I get more efficient systems in place and how do I reach that work life balance. And one thing you'll look at in the, in the healthcare world is look at the number of physicians coming out of training and opting to be hospitalists instead of attending physicians. There's a reason for that. It's work life balance. They're shift workers, and that's what they want.
[00:15:14] Speaker B: Well, for the longest time, we didn't consider providers really shift workers. That wasn't the identity. And I think that management also is struggling with this change, to your point. And I have many clients, many organizations within healthcare, not so much in the acute care setting anymore, but certainly outside of the acute care setting. So I'm talking payers, providers, maybe ambulatory care, outpatient med tech, call centers, you know, technology.
And they're telling me, no, we're not at risk of unionization. That's really not our population.
And I just kind of shake my hand and say, really? Is that the case? And, and I'm not an expert. Right. So I don't know. But I want to talk to you, to the experts.
Are my private equity clients, are my payer clients, are they at risk of unionization? Do they have to be mindful of this?
[00:16:14] Speaker A: Absolutely one. I saw a figure not long ago about the average size of a bargaining unit, and it was down in the low thirties. I think it might even have been in the twenties. Thats all you need. And for the union to be interested, look, their only source of revenue, the only way they can support their operations is through union dues. So theyre always looking for an area to grow.
Theres another study, particularly as you talk about private equity. There was a study that surveyed employed physicians. The main focus was, they feel like theyre losing autonomy. Theyre losing autonomy over medical decisions. But one of the things that they found in that survey was that 44% of the physicians would unionize if they could, and by the way, legally they can. So I don't think there's a workplace that's immune from it. But I think that the way that the private equity and everyone else ought to be looking at this is listen to your employees and create a workplace where you would want to go to work, treat the employees the way that you want to be treated, because that's what's driving the union efforts today. It's how do employees feel about their day to day work experience? That's driving even more than money.
[00:17:28] Speaker C: Mike made a good point. I think something that gets a little bit lost, but is specific to healthcare is we. Mike touched on the burnout and mental wellbeing and all of these factors that go into it, and those are not limited to providers. I can't tell you how many times we're talking to clients and they say that burnout, that fatigue, not just COVID, but, you know, the stress, whether it's through acquisition and merger activity or cuts and having to make reorg decisions at a corporate level, it all creates a sense of fatigue, even outside that provider. So maybe coders, billers, other types of groups of people are certainly going to be ripe for potential organizing, because, frankly, everyone in healthcare, not just those patient facing roles, are feeling a bit fatigued and run down, and they're going to be potentially more ripe for organizing.
[00:18:28] Speaker B: Like your mention of coders and billers, I think that that's a really good example. I also think about call center workers and case managers. You know, I think that those groups of workers, they have an environment where I could see them coming together and saying, hey, we need to make a change here. So just being a little bit more creative and understanding the business of where the vulnerabilities are, where you have potentially very unhappy or misaligned incentives of your employees.
So let's talk a little bit about that.
Mike, you mentioned creating a sense of empathy and understanding for what your workers are going through. What are some signs of union and potential strike activity? Sarah, are there telltale like, hey, you really need to get into the weeds and start thinking about your employee population if you see these things?
[00:19:26] Speaker C: Yeah, well, it's a great question. We like to see clients getting into the weeds before they see the signs. Right. And so a lot of what we do is partner with clients to understand their workforce before they see a sign. So that when they start to see the sign, they actually have some action plans in place in order to communicate message specific to their workforce. So that's something we like to do before the signs, but signs that obviously may trigger some concern. Again, unhappy birch margin is always a very basic one. If you're seeing internal meetings that are occurring amongst employees during break times, sometimes we'll see a natural leader within a particular group who starts to act and serve almost as a union representative, even though there is no union. Right. Saying, talking about concerns about pay or compensation or retirement benefits, seen as sort of a vocal spokesperson for the group. Within healthcare, we often see a lot of crossover. So you're going to have employees who are holding multiple jobs at once. And so they could be working in a unionized environment in one location and then also working for you, even though you're non unionized. And all it takes is one person saying, hey, this happened to me. And then the person shares what that experience would look like in a unionized environment. And so those are some of the signs that would maybe indicate an employer needs to be paying attention to its workforce and what's happening. But again, ideally, we should be doing that before some of the signs come up. At that time, I see those signs.
[00:21:05] Speaker B: I'm being proactive.
Then what do I do?
[00:21:09] Speaker A: It's all about engagement, and even more so today than it was when I started this back in 96.
Part of this is, and it's one of the first things that gets cut from the budget every year. But it's investing in your frontline leaders, right? It's your frontline leaders that have the greatest impact on the employees perception of the workplace. So you've got to take the time and energy and, frankly, the money to make them effective leaders, right? Oftentimes in healthcare, you advance someone into management because they were good at the healthcare piece of it. That's not enough. You've got to train them to be good managers. And one set of questions that I like to see employers ask. Now, the caveat here, if you're going to ask the question, better be able to do the follow up, is things like this.
Do your employees believe they have the tools necessary to do the job?
Do your employees believe that their immediate supervisor would advocate to get those tools to the extent you don't have them? Do they believe their immediate supervisor would step in and fix a workplace problem? Do they think that senior leaders listen to the immediate supervisor? The answers to those questions from your employees are going to tell you a lot about the workplace culture, at least the way that the employees perceive that culture.
[00:22:31] Speaker B: Stepping back a little bit, Sarah, the election's coming. You and I have been talking about this a little bit, what do you think we might see depending on the outcome of the election?
[00:22:41] Speaker C: What a loaded question. Well, I think it's going to be a big year, not just specific to healthcare. Right. Anytime we see elections that bring out lots of feelings about lots of topics, but specific to health care, you know, I always get a little whiplash right when we, if we have a change in leadership at a federal level because to Mike's point, it's almost like you go back and forth. Right. So, and we saw that with Biden. Right. When Biden came in, we went back to a lot of Obama administration standards, interpretation and guidance. And so there's a lot of unknown, makes it really hard to be an employer because you're trying to be compliant with what the status is now and what's been issued by current administration, and yet you don't know if it's really going to go into effect. So that's a really hard place to be. I will say, though, that notwithstanding what happens at a federal level, we continue to see activity and regulation at a state level. Mike touched upon it briefly a little bit before around staffing levels being a key driver and indicator around any unionization discussions. And we're seeing that also at a state level in terms of legislation where state legislators are trying to impose some controls over staffing specific to the healthcare industry, all, of course, in the context of patient safety concerns. But what that does and where we've seen it is it really drives employee engagement, union engagement, having more of a vocal voice and staffing levels that may or may not even be prescribed by our state legislature. So we're going to see a lot of changes no matter what happens at the federal level.
[00:24:21] Speaker B: Yeah, I agree with that. I think that the state and local rules have been factors that we've incorporated into our practice. We've had to modify many of our recommendations to make sure they're compliant with either mandated ratios or these new requirements, requirements related to staffing committees to be developed with staff representation. So very much speaking to staff engagement, to your point. So lots coming down the pipeline. Last question I promised, and you kind of got to this a little bit, Sarah, but I want to think a little bit more broadly is my favorite question. I like to ask all my guests, and I want to ask both of you each this question. So we'll start with you, Mike. First take out your crystal ball just for a minute. What do the next few years look like for our industry?
[00:25:08] Speaker A: I think they're going to be a rocky few years, I think unless we can find some magic fix for the staffing shortages we're seeing amongst nurses and techs. And by the way, one is looming among physicians as well. We're going to have a significant problem, and I think it's going to drive higher unionization, and they don't have the answer either. So I think what we need to do as a healthcare community is really start looking at wellness and rethinking how we communicate in the workplace, how we engage with employees, because we've got to find a way to get the workforce sort of united behind the mission of the organization and just keep plugging away at that. But I don't think that's going to be easy over the next few years.
[00:25:58] Speaker B: Agreed. No matter the investment, it seems like we're so far behind, right?
[00:26:03] Speaker A: Yeah.
[00:26:04] Speaker B: Okay, Sarah, your turn.
The crystal ball. What does it look like?
[00:26:09] Speaker C: Well, I echo Mike, I really do think the more healthcare employers can start to think about employee wellness as not just an employee engagement tool, but really servicing the overall mission of patient care and patient driven services is going to be critical. The one other topic that we haven't really touched on, although I have seen it come up in the context of labor negotiations, is the context of health equity and DEi. Right. So we see a lot of talk in the healthcare industry around health equity, access to health, access to providers, and I think we're going to see an increased dialogue around that, but also in the context of DEi initiatives in the workplace. They really go hand in hand, and I think we're going to continue to see employee driven focus as well as regulatory focus on those two items as well.
[00:27:09] Speaker B: I agree. I was wondering if you were going to say something like, vaccine mandates are coming, but I didn't want to over that can of worms because then we would be here for another hour.
[00:27:24] Speaker C: I think Mike and I are done writing legal updates on vaccine mandates. That gave me the whiplash, too. Yeah.
[00:27:31] Speaker B: No more vaccine mandates for us to talk about. This has been fantastic. I feel so nerdy, but I love to say that employment attorneys and economists are just my favorite people to talk to. I learned so much. I love to ask my nerdy questions. This has been great. Thank you so much for your time, your partnership, for letting us hear your thoughts on what's going on right now. This has been fantastic, and I look so forward to talking with you again and hearing about what's going on in your world. Thank you. Thank you.
[00:28:07] Speaker A: Thank you.
[00:28:08] Speaker C: Appreciate the opportunity. Yeah, thanks, Bianca.
