“Health care workers originally were left out of the NLRA,” explained Alex Shulman, chief of staff for Service Employees International Union (SEIU), a union of about two million members in health care, the public sector, and property services. “Historically, physicians were working in practices with an ownership stake or were not direct employees of hospitals. There are lots of reasons why that has changed, but those changes to employment structure have created a lot more interest in unionization among physicians.”

For example, according to the American Medical Association, more than half of emergency physicians were employees as of 2020, increasing the number that qualify for union membership.⁸ The report indicated at that time that less than 30 percent of emergency physicians held an ownership stake in their practice, and more than 20 percent were considered independent contractors.

Although the NLRA excludes independent contractors from unionization, whether that exclusion applies to an emergency physician who is a contractor may depend on details of the contract.

The Fair Labor Standards Act (FLSA) did not originally outline how to determine whether someone was an employee or an independent contractor. As a result, courts defined a “common law agency test,” which gave employers the right to tell an employee what to do, how, when, and where to do the job. To apply this test, one had to determine who controls two things: what must be done and how it must be done.⁹ Other aspects that could be considered were whether the employer could fire the worker, whether the employer furnished the worker with tools or equipment and a place to work, set the work hours, required the individual to work full-time, restricted the individual from working for others, and more.

In 2024, the Department of Labor published a final rule for employee or independent contractor classification under the FLSA. Under this rule, emergency physicians thought to be independent contractors may be eligible for union formation because they meet all six of the criteria for employee status effective as of March 2024:¹⁰

1. Opportunity for profit or loss depending on managerial skill;
2. Investments by the worker and the potential employer;
3. Degree of permanence of the work relationship;
4. Nature and degree of control;
5. Extent to which the work performed is an integral part of the potential employer’s business; and
6. Skill and initiative.

Physicians and Unions

“Historically, the word union and physician were never in the same sentence,” August said.