BILL NUMBER: AB 840 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 22, 2016
PASSED THE ASSEMBLY AUGUST 25, 2016
AMENDED IN SENATE AUGUST 18, 2016
INTRODUCED BY Assembly Member Ridley-Thomas
FEBRUARY 26, 2015
An act to add Section 19851.2 to, and to add and repeal Section
19851.3 of, the Government Code, relating to state employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 840, Ridley-Thomas. Nurses and certified nursing 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, 2019, 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.
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report provisions would be repealed on January 1, 2019.
The bill would make a related statement of legislative intent.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to ensure that
there is a process that management and supervisors in a state health
care facility are required to follow to avoid on-the-spot mandatory
overtime of any nurse or certified nursing assistant (CNA) whose
regularly scheduled work shift is complete, and to prevent
circumstances where an employee is stopped at the gate of, for
example, a Department of Corrections and Rehabilitation and
California Correctional Health Care Services facility, and is
instructed to return to work at the end of the employee's regularly
scheduled work shift. It is the intent of the Legislature to prohibit
a state facility that employs nurses or CNAs from using mandatory
overtime as a scheduling tool, or as an excuse for fulfilling an
operational need that results from a management failure to properly
staff those state facilities.
SEC. 2. Section 19851.2 is added to the Government Code, to read:
19851.2. (a) As used in this section:
(1) "Nurse" means all classifications of registered nurses
represented by State Bargaining Unit 17, or the Licensed Vocational
Nurse classifications represented by State Bargaining Unit 20.
(2) "CNA" means all Certified Nursing Assistant classifications
represented by State Bargaining Unit 20.
(3) "Facility" means any facility that provides clinically related
health services that is operated by the Division of Correctional
Health Care Services of the Department of Corrections and
Rehabilitation, the Department of Corrections and Rehabilitation, the
State Department of State Hospitals, the Department of Veteran
Affairs, or the State Department of Developmental Services in which a
nurse or CNA works as an employee of the state.
(4) "Emergency situation" means any of the following:
(A) An unforeseeable declared national, state, or municipal
emergency.
(B) A highly unusual or extraordinary event that is unpredictable
or unavoidable and that substantially affects providing needed health
care services or increases the need for health care services, which
includes any of the following:
(i) An act of terrorism.
(ii) A natural disaster.
(iii) A widespread disease outbreak.
(iv) A warden-, superintendent-, or executive director-declared
emergency, or severe emergency that necessitates the assistance of an
outside agency.
(b) A facility shall not require a nurse or CNA to work in excess
of a regularly scheduled workweek or work shift. A nurse or CNA may
volunteer or agree to work hours in addition to his or her regularly
scheduled workweek or work shift but the refusal by a nurse or CNA to
accept those additional hours shall not constitute either of the
following:
(1) Grounds for discrimination, dismissal, discharge, or any other
penalty or employment decision adverse to the nurse or CNA.
(2) Patient abandonment or neglect, except under circumstances
provided for in the Nursing Practice Act (Chapter 6 (commencing with
Section 2700) of Division 2 of the Business and Professions Code).
(c) This section shall not apply in any of the following
situations:
(1) To a nurse or CNA participating in a surgical procedure in
which the nurse is actively engaged and whose continued presence
through the completion of the procedure is needed to ensure the
health and safety of the patient.
(2) If a catastrophic event occurs in a facility and both of the
following factors apply:
(A) The catastrophic event results in such a large number of
patients in need of immediate medical treatment that the facility is
incapable of providing sufficient nurses or CNAs to attend to the
patients without resorting to mandatory overtime.
(B) The catastrophic event is an unanticipated and nonrecurring
event.
(3) If an emergency situation occurs.
(d) Nothing in this section shall be construed to affect the
Nursing Practice Act (Chapter 6 (commencing with Section 2700) of
Division 2 of the Business and Professions Code), the Vocational
Nursing Practice Act (Chapter 6.5 (commencing with Section 2840) of
Division 2 of the Business and Professions Code), or a registered
nurse's duty under the standards of competent performance.
(e) Nothing in this section shall be construed to preclude a
facility from hiring part-time or intermittent employees.
(f) Nothing in this section shall prevent a facility from
providing employees with more protections against mandatory overtime
than the minimum protections established pursuant to this section.
(g) This section shall become operative on January 1, 2019.
SEC. 3. Section 19851.3 is added to the Government Code, to read:
19851.3. (a) Each facility, as defined in paragraph (3) of
subdivision (a) of Section 19851.2, shall establish a joint labor
management task force to make recommendations and develop a plan to
reduce or eliminate mandatory overtime. A joint labor management task
force shall be composed of eight members, which shall consist of
four representatives for the facility and four labor union
representatives. The joint labor management task force shall meet
quarterly to develop recommendations.
(b) The recommendations shall include the following:
(1) Patient and staff needs by tracking trends in patient acuity,
overtime use, and overall staffing procedures.
(2) Training, for applicable employees, on core staffing
principles, best practices, the appropriate use of overtime, and ways
to avoid mandatory overtime.
(3) Assessment and staffing best practices, a contingency staffing
system, avenues for staff engagement in the scheduling process, and
creative scheduling solutions.
(c) (1) On or before November 1, 2018, the task force shall
prepare and submit to the Legislature a report on its
recommendations, including the following information:
(A) The number of voluntary and mandatory overtime hours at each
facility for registered nurses, licensed vocational nurses, and
certified nursing assistants. Each facility shall submit the total
number of voluntary and mandatory overtime hours worked.
(B) The number of complaints investigated and complaints that
resulted in a civil action or criminal prosecution.
(C) Recommendations for modifying, eliminating, or continuing the
task force's activities.
(D) Recommendations for statutory or regulatory changes, or both,
needed to better allow for enforcement.
(2) The report required by this subdivision shall be submitted to
the Legislature pursuant to Section 9795 of the Government Code.
(d) This section shall remain in effect only until January 1,
2019, and as of that date is repealed.