Industry lawyers discussed changes to the National Labor Relations Act as they relate to healthcare on Tuesday at the McGuireWoods conference on Healthcare Litigation in Chicago as part of a session entitled Key Labor and Employment Issues in the Healthcare Field.
The act dates back to 1935 and governs both unions and non-unionized workers in the United States. The strongly pro-union nature of the National Labor Relations Board in recent years, in combination with the decline in union representation in the American workforce, has proven to be a challenge, especially in healthcare, according to panelist and McGuireWoods attorney Jamie Hendrickson. "The last five years have been a time of changes, which are not on the whole good for employers and which make it easier for unions to thrive," he said.
"Since 2008, most important developments in the NLRA have involved the non-union workplace, which means employers may face liability on matters they have never even considered," added Christopher Michalik, partner with McGuireWoods. "In today's environment, employers need to be aware of and deal with the NLRA at all times."
According to Mr. Michalik, two common pain points for employers in ensuring NLRA compliance are policies for social media and employee conduct. Given the changes in NLRB policies in recent years, employee speech on social media networks such as Facebook and blanket conduct policies have become markedly more difficult to navigate. It is particularly difficult for employers to craft NLRB-compliant social media policies, Mr. Michalik said.
For instance, a May 2012 report issued by the NLRB's general counsel examined seven employer policies governing the use of social media by employees. In six cases, the general counsel’s office found some provisions of the employer’s social media policy to be lawful and others to be unlawful.
Another important change was the August 2013 reversal on what constitutes a microbargaining unit. Previously, microbargaining units could not be subsets of the workplace. With the reversal, subsets of the same profession — for instance, surgical nurses versus NICU nurses — can constitute separate units.
"This allows unions to organize in smaller groups, which is less expensive for them and allows them to get future footholds to expand in the future," said McGuireWoods attorney Christine Kommer. "It's an administrative nightmare for employers, because supervisors must deal with separate unions."
"There are serious problems with how to manage a facility while having micro units. It's a major concern, and healthcare will probably bear the brunt of these issues," added Mr. Michalik.
More Articles on Worforce & Labor Management:
KU Hospital Adopts Contract Despite Nurses Union Protests
Johns Hopkins Hospital Service Employees Strike
Johns Hopkins Hospital Workers May Strike Wednesday