“Uber for nurses? : Initiative targets health care for ‘work on call’ law

Healthcare, the nation’s fastest growing industry, could be next to push for laws to expand on-demand work.

A measure filed this week with the California attorney general’s office seeks to ask voters in the state in November to rank nurses, dental hygienists, occupational therapists and other healthcare workers who secure work online or via applications as independent contractors. The proposed measure was submitted by a law firm that worked on Proposition 22, the more than $200 million record initiative campaign funded by Uber Technologies Inc. UBER,
+3.29%,
DoorDash Inc. DASH,
+7.89%,
Lyft Inc. LYFT,
+2.35%
and Instacart which allowed these companies to circumvent a state law that would have classified their drivers as employees instead of contractors.

California voters passed the law in 2020, but a state court ruled it unconstitutional, a decision concert companies are appealing while trying to replicate the law in other states and nations. State laws often become a model for other states, so there is a possibility of a similar trajectory with health care, which is expected to create more jobs than any other profession this decade, becoming the largest industry in the country by 2030, according to the US Bureau of Labor Statistics.

See also: Learn about the record-breaking $200+ million fight to preserve the “gig economy”

The group behind the ballot initiative, which calls itself Californians for Fair Access to Health Care, has yet to reveal its supporters. If the initiative qualifies for the November ballot and is passed by voters, it would allow employers to treat healthcare workers as independent contractors if they obtain assignments from digital platforms and meet several criteria, including that they largely determine their own schedules, are free to accept or reject work without penalty, and may accept work from other platforms and sources.

“Healthcare professionals deserve the flexibility to choose where and when to provide services, and facilities deserve to be able to find these independent healthcare providers quickly and easily to support their patients, especially in changing conditions” , said a spokesperson for the group.

The initiative comes as venture capitalists pour millions into new healthcare staffing platforms, some of which work similarly to popular on-demand apps — and as hospitals struggle to retain nurses and other healthcare professionals who are burnt out due to the coronavirus pandemic. Despite healthcare staffing challenges that the COVID-19 pandemic has exacerbated, labor history and healthcare industry experts who spoke to MarketWatch called the initiative a “terrible idea,” ” malicious” and “huge anti-union movement in the venture capital industry.”

“We have a challenge with personnel issues [in healthcare]said Laurel Lucia, director of the health care program at UC Berkeley Labor Center. “I don’t see how this is the solution. Removing workplace protections and benefits for healthcare workers will be bad for both workers and patients. »

“Nursing…is fundamentally different from on-call work”

At least one of the platforms that have sprung up to modernize the healthcare industry agrees. Trusted Health, a San Francisco-based startup that recently raised $149 million in venture capital, matches nurses with jobs across the country by having them create profiles on its website, offering salary calculators , licensing guides and more.

But like many traditional recruiting agencies, it hires nurses as W-2 employees, not independent contractors, and offers them health care benefits, access to a 401(k) and more.

“Now more than ever, we feel obligated and privileged to ensure that nurses can continue the work they do,” said Sarah Gray, Clinician Founder of Trusted Health. “We need them and someone has to take care of them.”

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Gray called travel and practical nursing a “cornerstone” of the nursing industry and cited a Trusted Health survey of more than 3,300 nurses which found that 71% wanted flexible working hours. schedule. But she added that no matter where and how nurses work, they should have access to “robust” benefits.

“Nursing…is fundamentally different from on-call work,” she said. “There is a high barrier to entry. It is a professional career, and to pursue this career and provide high quality care, nurses must themselves receive this appropriate care in the form of benefits.

Besides the threat of the gig economy model itself, Gabriel Winant, a history professor at the University of Chicago and author of “The Next Shift: The Fall of Industry and the Rise of Healthcare in Rust Belt America,” called the proposed initiative “one of the most malicious things I have ever seen.

Winant said the for-profit model in hospitals that relies on not operating at full capacity at all times is at the root of the understaffing issues we’re seeing right now, and says this guy legislation would further aggravate the situation.

“It’s already too understaffed, already stretched…the attempt to operate for profit has created a lot of problems,” he said. “What the initiative is saying is that market incentives haven’t gone far enough.”

Read more: Hospitals are spending more money to hire and retain healthcare workers during the pandemic

The erosion of the protections and benefits of the nursing profession, Winant said, would affect families and communities that depend primarily on women and people of color who fill these jobs. And he said the effects could ripple through and make the situation even more precarious for the lowest-paid healthcare workers, such as care aides and home helpers.

However, Winant compared what happened with the campaign of Uber and others in California and said he was skeptical that this proposed initiative would succeed: “Prop. 22 did not target a group of workers who were unionized and as reliable as nurses,” he said.

Renée Saldaña, spokesperson for SEIU-United Healthcare Workers West, a union of more than 100,000 healthcare workers, patients and activists in California, said “this proposed initiative seems like the worst possible idea in the midst of a pandemic. It would further devalue the jobs of the essential frontline caregivers we depend on. »

Saldaña said approximately 98,000 of SEIU-UHW’s represented members in the state, which include respiratory care practitioners, nursing assistants, dietary and environmental services personnel, optometrists and more, are classified as employees. .

Traveling nurses already have flexibility — and benefits

Melissa McDonald has been a traveling nurse for over a decade and has worked for 30 hospitals across the country. She has a day or as-needed job in Oakland, Calif., but also finds additional work at larger agencies that use commissioned recruiters and on new platforms like Trusted Health, Go RN and others.

McDonald says she enjoys being a traveling nurse because she has “commitment issues” and prefers to stay out of hospital politics. She was a W-2 employee for her assignments and said if traveling nurses were to become independent contractors, they should know what they’re up against.

“I’ve had friends who ended up owing $20,000 to $30,000 in taxes” because they didn’t plan well, McDonald said. She added that a self-employed nurse should also take out malpractice insurance and “make sure you are compensated as you should be because you walk in without any protection.”

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Catherine Fisk, a UC Berkeley professor who teaches labor and employment law, said failing to grant an exemption for nurses to a California law that determines when a worker can be considered a independent contractor, is likely an impetus behind the push to bring the issue before voters. (Assembly Bill 5 is the law that Uber and the other major gig companies tried to circumvent with Prop. 22.)

“Uber for nurses? ” she said. “What a bad idea.”

Fisk added, “What Prop. 22 has done is to shift all risk of workplace injury/illness, weak demand, unemployment, etc., from companies to workers. And there’s no reason to believe it will be any different.

Veena Dubal, a UC Hastings law professor whose research focuses on law, technology and labor, said she sees the proposed initiative as “a huge anti-union move by the venture capital industry.” .

“With the VC money, they have the ability to make it really attractive at the start,” Dubal said. “A nurse might say, ‘I’m sick of my 12-hour shifts, I’m going to quit my job at the hospital.’ These companies will offer large sums of money up front…and then trap people into this lifestyle.

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Lawyer for the firm who is on file for the proposed initiative did not return a request for comment. The firm, Nielsen Merksamer, earned at least $2 million for its work on the Proposition 22 campaign in California, according to campaign finance records. The company is also representing the Protect App-Based Drivers & Services Coalition, the group backed by Uber, Lyft and the other big gig companies, in its appeal of a judge’s ruling last year declaring Proposition 22 unenforceable.

Lobbying filings with the state show that the firm’s healthcare clients include health insurance providers, industry associations and companies that serve hospitals. The campaign spokesperson said he could not make the two promoters who signed the filing – whom he called “concerned citizens” – available to speak with MarketWatch, which was unable to to contact them independently.

Californians recently sided with the healthcare industry in the election. In 2020, they voted against an initiative to require a doctor and nurse in dialysis clinics when patients are being treated. It was the second time unions had tried to get voters to regulate dialysis clinics. They were surpassed by DaVita Inc. DVA,
+1.34%
and Fresenius Medical Care FMS,
+0.98%
— two of the largest for-profit dialysis providers in the country. According to documents filed with the state, a similar initiative could appear on the ballot again in November.

Maria D. Ervin