Amended in Senate August 18, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 840


Introduced by Assembly Member Ridley-Thomas

February 26, 2015


An act to add Section 19851.2begin delete toend deletebegin insert to, and to add and repeal Section 19851.3 of,end insert the Government Code, relating to state employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 840, as amended, Ridley-Thomas. Nurses and certifiedbegin delete nurseend deletebegin insert nursingend insert assistants: overtime.

The State Civil Service Act generally requires the workweek of state employees to be 40 hours, and the workday of state employees to be 8 hours. Under the act, it is the policy of the state to avoid the necessity for overtime work whenever possible.

This bill, commencing January 1,begin delete 2017,end deletebegin insert 2019,end insert would prohibit a nurse or Certified Nursing Assistant (CNA), as defined, employed by the State of California in a specified type of facility from being compelled to work in excess of the regularly scheduled workweek or work shift, except under certain circumstances. The bill would authorize a nurse or CNA to volunteer or agree to work hours in addition to his or her regularly scheduled workweek or work shift, but the refusal to accept those additional hours would not constitute patient abandonment or neglect or be grounds for discrimination, dismissal, discharge, or any other penalty or employment decision adverse to the nurse or CNA.

begin insert

This bill would require such a facility to establish a 8-member joint labor management task force, with membership as prescribed, to meet quarterly to develop specific recommendations and a plan to reduce or eliminate mandatory overtime. The bill would require a task force, on or before November 1, 2018, to prepare and submit to the Legislature a report on its recommendations. Those task force and report provisions would be repealed on January 1, 2019.

end insert
begin delete

This

end delete

begin insertTheend insert bill would make a related statement of legislative intent.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

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SECTION 1.  

It is the intent of the Legislature to ensure that
2there is a process that management and supervisors in a state health
3care facility are required to follow to avoid on-the-spot mandatory
4overtime of any nurse or certified nursing assistant (CNA) whose
5regularly scheduled work shift is complete, and to prevent
6circumstances where an employee is stopped at the gate of, for
7example, a Department of Corrections and Rehabilitation and
8California Correctional Health Care Services facility, and is
9instructed to return to work at the end of the employee’s regularly
10scheduled work shift. It is the intent of the Legislature to prohibit
11a state facility that employs nurses or CNAs from using mandatory
12overtime as a scheduling tool, or as an excuse for fulfilling an
13 operational need that results from a management failure to properly
14staff those state facilities.

15

SEC. 2.  

Section 19851.2 is added to the Government Code, to
16read:

17

19851.2.  

(a) As used in this section:

18(1) “Nurse” means all classifications of registered nurses
19represented by State Bargaining Unit 17, or the Licensed
20Vocational Nurse classifications represented by State Bargaining
21Unit 20.

22(2) “CNA” means all Certified Nursing Assistant classifications
23represented by State Bargaining Unit 20.

24(3) “Facility” means any facility that provides clinically related
25health services that is operated by the Division of Correctional
26Health Care Services of the Department of Corrections and
27Rehabilitation, the Department of Corrections and Rehabilitation,
28 the State Department of State Hospitals, the Department of Veteran
29Affairs, or the State Department of Developmental Services in
30which a nurse or CNA works as an employee of the state.

P3    1(4) “Emergency situation” means any of the following:

2(A) An unforeseeable declared national, state, or municipal
3emergency.

4(B) A highly unusual or extraordinary event that is unpredictable
5or unavoidable and that substantially affects providing needed
6health care services or increases the need for health care services,
7which includes any of the following:

8(i) An act of terrorism.

9(ii) A natural disaster.

10(iii) A widespread disease outbreak.

11(iv) Abegin delete warden, superintendent,end deletebegin insert warden-, superintendentend insertbegin insert-,end insert or
12executive director-declared emergency, or severe emergency that
13necessitates the assistance of an outside agency.

14(b) A facility shall not require a nurse or CNA to work in excess
15of a regularly scheduled workweek or work shift. A nurse or CNA
16may volunteer or agree to work hours in addition to his or her
17regularly scheduled workweek or work shift but the refusal by a
18nurse or CNA to accept those additional hours shall not constitute
19either of the following:

20(1) Grounds for discrimination, dismissal, discharge, or any
21other penalty or employment decision adverse to the nurse or CNA.

22(2) Patient abandonment or neglect, except under circumstances
23provided for in the Nursing Practice Act (Chapter 6 (commencing
24 with Section 2700) of Division 2 of the Business and Professions
25Code).

26(c) This section shall not apply in any of the following situations:

27(1) To a nurse or CNA participating in a surgical procedure in
28which the nurse is actively engaged and whose continued presence
29through the completion of the procedure is needed to ensure the
30health and safety of the patient.

31(2) If a catastrophic event occurs in a facility and both of the
32following factors apply:

33(A) The catastrophic event results in such a large number of
34patients in need of immediate medical treatment that the facility
35is incapable of providing sufficient nurses or CNAs to attend to
36the patients without resorting to mandatory overtime.

37(B) The catastrophic event is an unanticipated and nonrecurring
38event.

39(3) If an emergency situation occurs.

P4    1(d) Nothing in this section shall be construed to affect the
2Nursing Practice Act (Chapter 6 (commencing with Section 2700)
3of Division 2 of the Business and Professions Code), the Vocational
4Nursing Practice Act (Chapter 6.5 (commencing with Section
52840) of Division 2 of the Business and Professions Code), or a
6registered nurse’s duty under the standards of competent
7performance.

8(e) Nothing in this section shall be construed to preclude a
9facility from hiring part-time or intermittent employees.

10(f) Nothing in this section shall prevent a facility from providing
11employees with more protections against mandatory overtime than
12the minimum protections established pursuant to this section.

13(g) This section shall become operative on January 1,begin delete 2017.end delete
14
begin insert 2019.end insert

15begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 19851.3 is added to the end insertbegin insertGovernment Codeend insertbegin insert, to
16read:end insert

begin insert
17

begin insert19851.3.end insert  

(a) Each facility, as defined in paragraph (3) of
18subdivision (a) of Section 19851.2, shall establish a joint labor
19management task force to make recommendations and develop a
20plan to reduce or eliminate mandatory overtime. A joint labor
21management task force shall be composed of eight members, which
22shall consist of four representatives for the facility and four labor
23union representatives. The joint labor management task force shall
24meet quarterly to develop recommendations.

25
(b) The recommendations shall include the following:

26
(1) Patient and staff needs by tracking trends in patient acuity,
27overtime use, and overall staffing procedures.

28
(2) Training, for applicable employees, on core staffing
29principles, best practices, the appropriate use of overtime, and
30ways to avoid mandatory overtime.

31
(3) Assessment and staffing best practices, a contingency staffing
32system, avenues for staff engagement in the scheduling process,
33and creative scheduling solutions.

34
(c) (1) On or before November 1, 2018, the task force shall
35prepare and submit to the Legislature a report on its
36recommendations, including the following information:

37
(A) The number of voluntary and mandatory overtime hours at
38each facility for registered nurses, licensed vocational nurses, and
39certified nursing assistants. Each facility shall submit the total
40number of voluntary and mandatory overtime hours worked.

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(B) The number of complaints investigated and complaints that
2resulted in a civil action or criminal prosecution.

3
(C) Recommendations for modifying, eliminating, or continuing
4the task force’s activities.

5
(D) Recommendations for statutory or regulatory changes, or
6both, needed to better allow for enforcement.

7
(2) The report required by this subdivision shall be submitted
8to the Legislature pursuant to Section 9795 of the Government
9Code.

10
(d) This section shall remain in effect only until January 1, 2019,
11and as of that date is repealed.

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