NLRB Rules That Medical Residents Are Employees Eligible to Unionize

Randi Klein Hyatt
Randi Klein Hyatt

Resident doctors work long hours caring for sick, vulnerable patients.  Eighty hours a week or more is typical.  During that time, under the supervision of an attending physician, they have major responsibilities—making medical decisions, treating patients and performing surgeries.  The administration of one New York medical school and hospital, however, believed that residency is not a job at all.  Rather, the school and hospital argued, residents were “more akin to graduate students.”

The case is Icahn Sch. of Med. at Mount Sinai, NLRB Reg. Dir., No. 29-RC-112517, (2/25/14).  There, the Icahn School of Medicine at Mount Sinai (“Icahn”) and the Elmhurst Hospital Center (“Elmhurst”) were attempting to convince the federal government to prevent residents from joining a physician’s union (the Committee of Interns and Residents, Service Employees International Union (“CIR-SEIU”)) by claiming that residents are not employees, but rather students.

CIR-SEIU filed a petition under Section 9(c) of the National Labor Relations Act (the “Act”), seeking to represent approximately 140 interns, residents, chief residents and fellows (“house staff officers” or the “house staff”) employed at Elmhurst as part of their graduate medical training.  It contended that, under the National Labor Relations Board’s landmark decision in Boston Medical Corp, ., 330 NLRB 152, 162 LRRM 1329 (1999) (229 DLR AA-1, 11/30/99) (“BMC”), house staff members are “employees” within the meaning of the Act and, therefore, entitled to choose whether to be represented for collective-bargaining purposes.

By contrast, Icahn contended that its house staff at Elmhurst differed significantly from the house staff in BMC and, therefore, were not “employees” under the Act.  Icahn argued that the house staff were more akin to graduate students in Brown University, 342 NLRB 483, 175 LRRM 1089 (2004) (136 DLR AA-1, 7/16/04), whom the Board found not to be “employees” under the Act.  Alternatively, Icahn argued for the reversal of BMC, which would have impacted house staff across the country.

At the NLRB hearing, Icahn and Elmhurst described house staff physicians as “First-year students,” “Postgraduate students,” “Students,” and “Postgraduate medical students.”  Even fellows were referred to as “students who have completed their residency program.”  Not once were house staff referred to as “physicians” or acknowledged as having an “M.D” or “D.O.”  However, the residents had already received their degrees from other medical schools, did not pay tuition to Icahn or register as students, and the majority of their time was spent on patient care after their first year of residency.

The NLRB Regional Director in Brooklyn found that the resident physicians were employees as defined by the Act.  According to the decision, the “voluminous record in this case shows essentially the same facts [as BMC].”  While Icahn argued that the circumstances of the Elmhurst residents and those in BMC were different, those arguments were “unavailing” to the NLRB.  Icahn argued that it was only an “educational institution” and did not, itself, operate a hospital, whereas the residents in BMC were employed by the hospital and not the Boston University School of Medicine.  In the NLRB’s view, this was “a distinction without a difference.”  Further, Icahn’s contention that its residency program was “more educationally focused” than that in BMC was “not supported by the record.”

Many employers have raised the student-employee issue over the years to prevent residents from organizing.  Here, Icahn, Elmhurst, and this case are no different.  But, this case is significant because Icahn and Elmhurst sought the reversal of a 15-year-old landmark decision (i.e. BMC).  They failed, the precedent remains in place, and the instant decision is not expected to be requested for review.



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