/ en Sat, 26 Apr 2025 11:21:57 -0500 Tue, 21 Nov 23 16:01:00 -0600 /news/headline/2023-11-21-aha-files-amicus-case-challenging-nlrb-joint-employer-rule <p>AHA Nov. 20 filed a friend-of-the-court brief in support of the U.S. Chamber of Commerce and others claiming the <a href="/news/headline/2023-10-26-nlrb-finalizes-rule-joint-employer-status">National Labor Relations Board’s new rule</a> for determining joint-employer status under the National Labor Relations Act violates the Administrative Procedure Act. AHA urged the court to grant the plaintiffs’ motion for summary judgment, set aside the rule and enjoin its application.  <br />  <br /> “Because hospitals have both a legal and professional duty to control health and safety conditions for everyone working in the hospital environment, the Final Rule could result in virtually every outside contract worker being classified as part of a “joint employment” relationship with the hospital,” <a href="/amicus-brief/2023-11-21-aha-amicus-curiae-brief-chamber-commerce-v-national-labor-relations-board">AHA wrote</a>. “By expanding the definition of joint employment in such a far-reaching fashion, the Final Rule will penalize hospitals for adopting responsible workplace policies. It will throw a wrench into the complex federal funding schemes that currently pay for patient care. And it will disrupt hospitals’ staffing arrangements, forcing hospitals and contractors into impractical, unnecessary, and costly bargaining. In imposing these burdens, the Final Rule departs from the Board’s longstanding recognition of the unique labor issues that hospitals face, which require tailored regulatory solutions instead of the Final Rule’s one-size-fits-all approach.” <br />  </p> Tue, 21 Nov 2023 16:01:00 -0600 Labor Unions /news/headline/2023-10-26-nlrb-finalizes-rule-joint-employer-status <p>The National Labor Relations Board today issued a <a href="https://public-inspection.federalregister.gov/2023-23573.pdf" target="_blank">final rule</a> for determining joint-employer status under the National Labor Relations Act, when separate organizations must bargain with a union jointly. Under the new standard, effective Dec. 26, NLRB <a href="https://www.nlrb.gov/news-outreach/news-story/board-issues-final-rule-on-joint-employer-status" target="_blank">said</a> an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more essential terms and conditions of employment, defined as: wages, benefits and other compensation; hours of work and scheduling; the assignment or supervision of duties; work rules and directions governing the performance of duties and grounds for discipline; employment tenure, including hiring and discharge; and working conditions related to employee safety and health.<br />  <br /> The final rule explicitly states that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) or exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer. This means that either indirect or reserved control may stand alone as the basis for finding a joint-employer relationship, and the existence of either — without regard to the extent of the reserved or indirect control — indicates joint-employer status.<br />  <br /> The board declined to accept the AHA’s <a href="/lettercomment/2022-11-04-aha-comments-national-labor-relations-boards-notice-proposed-rulemaking-regarding-standard-determining" target="_blank">recommendation</a> that it withdraw or at least exempt hospitals from the proposed rule. While acknowledging specific concerns raised by hospital group commenters, like the AHA, the board states in the final rule’s preamble that, “We see no clear basis in the text or structure of the Act for exempting particular groups or types of employers from the final rule, nor do we believe that the Act’s policies are best served by such an exemption. That said, we share these commenters’ general views that the proper application of the final rule in particular cases will require the Board to consider all relevant evidence regarding the surrounding context.”</p> Thu, 26 Oct 2023 15:21:52 -0500 Labor Unions /fact-sheets/2021-03-14-fact-sheet-protecting-right-organize-pro-act-2021 <div class="container"> <div class="row"> <div class="col-md-8"> <h2>Could Undermine Hospitals Ability to Effectively Care for Patients</h2> <p><strong>The House of Representatives March 9 adopted the Protecting the Right to Organize (PRO) Act of 2021 (H.R. 842). A virtually identical bill is pending in the Senate (S. 420).</strong></p> <p>If adopted by the Senate and signed by President Biden, the PRO Act would make sweeping changes to the National Labor Relations Act (NLRA) and other labor laws in the United States, including in ways that could have a significant adverse impact on hospitals and health systems as employers.</p> <h2>Significant Changes for Hospitals and Health Systems Included in the PRO Act</h2> <h3>Expand Joint Employer Liability</h3> <p>The bill would codify the Browning-Ferris test issued by the National Labor Relations Board (NLRB) under the Obama Administration for determining joint employer status between two distinct corporate entities. Hospital employers often contract with outside vendors to provide services that are not core to the mission of the hospital, and hospitals often rely on other entities to supplement their staffing, such as agencies providing additional registered nurse staffing. Under the PRO Act, hospitals would be more likely to be considered a “joint employer” of the employees of these third party agencies. Academic medical centers where the hospital and university are separate entities also could be adversely impacted.</p> <h3>Broaden the Test for Employment Status</h3> <p>The PRO Act would codify California’s broad “ABC” test for assessing employee status, thereby requiring many independent contracts to be treated as employees under the NLRA.</p> <h3>Arbitration of Initial Collective Bargaining Agreements on Expedited Basis</h3> <p>Under current law, the complex bargaining required to reach an initial collective bargaining agreement often takes up to a year to complete. Under the PRO Act, the parties would have only 90 days to bargain an initial contract, after which either party could trigger third party mediation and then arbitration. The arbitration panel would be authorized to impose the terms of initial contract on the parties, under criteria set forth in the statute that focus primarily on the employer’s financial condition and the cost of living for employees. Numerous critical factors that often drive hospital labor contracts, such as patient safety and staffing, are largely absent from contract-setting criteria under the PRO Act.</p> <h3>Elimination of Secondary Boycott Restrictions</h3> <p>Current law restricts unions from seeking to expand strikes from a primary employer to other, secondary companies with whom the primary employer does business. The PRO Act seeks to limit those restrictions. Given the unique work environment of hospital employers, these changes are likely to lead to more disruption of the patient care environment in hospitals. Moreover, the changes in the PRO Act may create greater risk for disruptions following the transfer of patients to other hospitals in anticipation of a strike.</p> <h3>Expanded Civil Penalties for Labor Law Violations by Employers</h3> <p>Penalties under the NLRA are generally limited to NLRB awards of back pay and reinstatement. Under the PRO Act, additional penalties would be imposed for violations of the NLRA, including personal liabilities for corporate representatives found to have violated the NLRA. No additional penalties would be imposed, however, due to violations of the NLRA by union officials.</p> <h3>Raise the Threshold for Finding Supervisory Status under the NLRA</h3> <p>upervisors are excluded from protections under the NLRA. The PRO Act would restrict the definition of a supervisor, thereby expanding the scope of employees who can unionize and seek protections under the NLRA. Many of the leading cases addressing who qualifies as a supervisor under the current law arose in hospitals, often involving the supervisory status of charge nurses and other critical positions that direct the work of other employees. Under the PRO Act’s more restrictive supervisory test, hospitals would have a much harder time demonstrating that these types of employees are supervisors.</p> <h3>Prohibition against Class Action Restrictions in Pre-dispute Arbitration Agreements</h3> <p>Under U.S. Supreme Court authority, employers may require employees to sign pre-dispute arbitration agreements that prohibit class or collective actions in arbitration. The PRO Act would make such provisions unlawful.</p> <h3>Codification of the Proposed Obama-era Administration Persuader Rule</h3> <p>The PRO Act would impose significant additional restrictions and reporting obligations on employer consultants, including law firms that advise employers on topics related to unionization. This could discourage consultants and law firms from advising hospitals and other employers on essential labor issues.</p> <h3>Codification of the Obama-era Expedited Election Rule</h3> <p>During the Obama and Trump Administrations, the NLRB issued varying regulations related to the timing and process of conducting union elections. The PRO Act would codify many of the accelerated procedures issued by the NLRB during the Obama Administration, resulting in expedited union elections. The PRO Act also would expand the scope of information about employees that employers must provide to unions engaged in an organizing campaign. There are serious concerns that hospital staff would lack the time and information to make an informed choice about unionization. In addition, there are concerns that expanding the scope of information available would require hospital employers to disclose employees personal information and provide access to information online, raising serious safety and security concerns about this and other sensitive information hospitals are required maintain.</p> <h3>Mail Ballot Elections</h3> <p>The PRO Act would authorize unions to demand in most circumstances a mail ballot election, rather than an in person, secret ballot election.</p> <h3>Ban on Employer Mandatory “Captive Audience” Group Meetings in Union Campaign Settings</h3> <p>The PRO Act would change longstanding rules under the NLRA that allow employers to conduct mandatory meetings of employees to discuss unionization.</p> <h3>Express Allowance of Intermittent Strikes</h3> <p>Strikes in health care settings are often short-term strikes, which under certain circumstances are not protected activity under the NLRA. The PRO Act would expressly authorize unions to engage in a pattern of short term “intermittent” strikes without losing the protection of the NLRA. There are likely to be numerous adverse consequences for hospitals and their patients from such strikes, ranging from increased costs to staffing gaps at critical times that could delay patient care activities.</p> <h3>Prohibition on Permanently Replacing Strikers and Employer Lockouts</h3> <p>The PRO Act would prohibit the hiring of permanent replacements of striking employers and prohibit the use of employer lockouts.</p> <h3>Private Right of Action in Federal Court</h3> <p>Currently, alleged unfair labor practices must be pursued through the NLRB. The PRO Act would allow charging parties to file a private claim in federal district court to pursue alleged violations of the NLRA.</p> <h3>Expedited Injunction Actions against Employers in Federal District Court</h3> <p>Injunctions against employer violations of the NLRA could be pursued on an expedited basis in federal court.</p> </div> <div class="col-md-4"><a href="/system/files/media/file/2021/04/fact-sheet-PRO-0321.pdf" title="Download the Fact Sheet PDF"><img alt="Fact Sheet: Protecting the Right to Organize (PRO) Act of 2021 page 1" data-entity-type="file" data-entity-uuid="02f87b88-5ae5-4f84-8bbc-efaddf8d1b91" src="/sites/default/files/inline-images/Page-1-fact-sheet-PRO-0321.jpg" width="1700" height="2200" class="align-center"></a> <div class="external-link spacer"><a class="btn btn-wide btn-primary" href="/system/files/media/file/2021/04/fact-sheet-PRO-0321.pdf" target="_blank" title="Download the Fact Sheet PDF">Download the PDF</a></div> </div> </div> </div> Sun, 14 Mar 2021 07:40:02 -0500 Labor Unions /press-releases/2016-03-23-statement-department-labors-final-rule-narrowing-advice-exemption <div class="outlineContent clearfix"><p class="text-align-center"><strong>Tom Nickels</strong></p><p class="text-align-center"><strong>Executive Vice President</strong></p><p class="text-align-center"><strong>���������� Association</strong></p><p class="text-align-center"><strong>March 23, 2016</strong></p><p align="left">Today’s final rule will have a chilling effect on hospitals’ ability to seek expert advice and counsel in addressing issues related to labor organizing and collective bargaining. To help ensure that communications with employees about organizing and collective bargaining are compliant with the complex and exacting requirements in federal labor law, hospitals must rely on outside experts. The significant ambiguities and burdens created by the new reporting standards may discourage many from seeking or providing the expertise that is critical and necessary to help hospitals and other employers follow the law. We understand that national organizations, like the Coalition for a Democratic Workplace, of which AHA is a member, are considering a possible legal challenge to the new rule, and AHA expects be part of that effort.</p><p class="text-align-center">###</p><h2>About the AHA</h2><p>The AHA is a not-for-profit association of health care provider organizations and individuals that are committed to the health improvement of their communities. The AHA is the national advocate for its members, which include nearly 5,000 hospitals, health care systems, networks, other providers of care and 43,000 individual members. Founded in 1898, the AHA provides education for health care leaders and is a source of information on health care issues and trends. For more information, visit the AHA website at <a href="/">www.aha.org</a>.</p></div> Wed, 23 Mar 2016 00:00:00 -0500 Labor Unions