Questions have been streaming in about the recent National Labor Relations Board rule requiring private-sector employers to remind employees of their rights under the National Labor Relations Act with another lengthy, decorative government poster by Nov. 14. Will this new rule apply to the average medical private practice?
The answer proved more difficult to nail down than I anticipated. A National Labor Relations Board (NLRB) spokesperson said he thought that it would indeed apply to medical offices, but he would get back to me with an authoritative answer. (As of my early September deadline, he had not.) A prominent labor lawyer was fairly certain that it would not apply, in most cases; but another opined that the answer was irrelevant since it wouldn’t matter either way.
By Dr. Joseph S. Eastern
Before explaining this disparity and revealing who (if anyone) is right, let me start from the beginning. The National Labor Relations Act (NLRA) is the federal law that guarantees the rights of employees to organize and bargain collectively with their employers, or not, as they choose. The NLRB is the federal agency charged with enforcing the NLRA.
Last year the NLRB decided that labor rights should be spelled out – displayed in writing in virtually every private-sector business for all employees to see – and in late August of this year issued a ruling to that effect. The same notice must appear on the company’s Internet site, if one exists.
In essence, the notice informs employees that they have the right to act together to improve wages and working conditions, to form a union, to bargain collectively, and to refrain from any of these activities – and to not be penalized for whatever choices they make.
The NLRB noted that the new requirement applies to all private-sector work places, unionized or not, except for farms, railroads, airlines, and the U.S. Postal Service. That would seem to include private medical offices; however, according to the NLRB, they have "chosen not to assert [their] jurisdiction over very small employers whose annual volume of business is not large enough to have more than a slight effect on interstate commerce."
These days it’s hard not to engage in interstate commerce; most of the medical and office supplies you buy probably come from another state, for example; and you might send your billing or pathology services out of state – and so on. But the NLRB appears to be saying that such commerce is okay as long as it has no more than a "slight effect" on the grand scheme; but naturally, no one has defined "slight."
Common sense tells us that medical treatment and procedures performed in a small office within a single state are not "interstate commerce," and are unlikely to affect interstate commerce in any measurable way, no matter how many supplies you purchase or what services you outsource. (That’s why one lawyer told me the rule would not apply.) But if you have a large multispecialty clinic, or multiple offices in more than one state (or in one state that draws patients from more than one state), the NLRB would probably argue that you’re within its jurisdiction. Unions are irrelevant – the NLRA applies to all workplaces, unionized or not.
Complicating all of this are questions of whether the rule is necessary – or even legal – and whether it will withstand court challenge. The NLRA contains no provision authorizing the board to make such a rule. Indeed, after the rule was announced, one of the NLRB’s own members wrote a blistering dissent charging that the board had acted in excess of its authority, and predicting that a reviewing court would soon "save the Board from itself" by striking the rule. Even if the courts uphold the rule and it takes effect as scheduled in November, the NLRB has admitted that it has no authority to enforce it. (That’s why the other lawyer thought the answer wouldn’t matter.)
So what does all this mean for the average private medical practice?
In the absence of an official answer, small offices seem likely to be in the clear; and with a court challenge looming and no specific requirements until the middle of November, even if you run an operation big enough to have a measurable effect on interstate commerce, my suggestion is to wait and see.
Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J.