BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON
          PUBLIC EMPLOYMENT AND RETIREMENT
                               Dr. Richard Pan, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 840          Hearing Date:     6/27/16
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          |Author:    |Ridley-Thomas                                        |
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          |Version:   |2/26/15    As introduced                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Pamela Schneider                                     |
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          Subject:  Nurses and certified nurse assistants:  overtime

            SOURCE:  Service Employees International Union, Local 1000

            ASSEMBLY VOTES:
          
          
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          |Assembly Floor:                 |57 - 21                         |
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          |Assembly Appropriations         |12 - 5                          |
          |Committee:                      |                                |
          |--------------------------------+--------------------------------|
          |Assembly Public Employees,      |6 - 1                           |
          |Retirement/Soc Sec Committee:   |                                |
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           DIGEST:    This bill prohibits, beginning January 1, 2017,  
          mandatory overtime for registered nurses (RNs), licensed  
          vocational nurses (LVNs), or certified nursing assistants (CNAs)  
          who are employed in state hospitals and facilities, as  
          specified.

          ANALYSIS:
          
          Existing law:

          1)Establishes, as the general policy of the state, the workweek  
            of state employees to be 40 hours, and the workday of state  







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            employees eight hours, except that workweeks and workdays of a  
            different number of hours may be established in order to meet  
            the varying needs of the different state agencies.

          2)States that it is the policy of the state to avoid the  
            necessity for overtime work whenever possible.  This policy  
            does not restrict the extension of regular working-hour  
            schedules on an overtime basis in those activities and  
            agencies where it is necessary to carry on the state business  
            properly during a manpower shortage.

          3)Under the provisions of the Ralph C. Dills Acts, provides a  
            statutory framework for the State and its represented  
            employees to collectively bargain over issues impacting wages  
            and working conditions.  The memoranda of understanding (MOU)  
            between the State and state employee RNs (bargaining unit-or  
            BU-17) and LVNs and CNAs (BU 20) contain provisions governing  
            the use of overtime and mandatory overtime.

          This bill:

          1)Defines a "nurse" as all classifications of RNs represented by  
            BU 17, or the LVN classifications represented by BU 20.

          2)Defines a "certified nursing assistant" as all CNA  
            classifications represented by BU 20.

          3)Defines a "facility" as a facility providing clinically  
            related health services that is operated by specified state  
            departments in which a nurse or CNA works as an employee of  
            the state.

          4)Defines "emergency situation" as an unforeseeable declared  
            national, state, or municipal emergency or a highly unusual  
            event that is unpredictable or unavoidable that affects health  
            care services, such as an act of terrorism; a natural  
            disaster; an outbreak of disease; or a declared emergency, as  
            specified.

          5)Prohibits a facility from requiring a nurse or CNA to work in  
            excess of a regularly scheduled workweek or work shift, except  
            as provided.

          6)Authorizes a nurse or CNA to volunteer to work extra hours,  
            but the refusal by a nurse or CNA to work such hours shall not  








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            be grounds for discrimination, dismissal, discharge, or other  
            penalty or patient abandonment or neglect, as specified.

          7)Provides that the overtime prohibition does not apply in the  
            following situations:

             a)   To any nurse or CNA participating in a surgical  
               procedure, as specified.

             b)   If a catastrophic event occurs in a facility where both  
               of the following apply:

               i)     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; and,

               ii)    The catastrophic event is an unanticipated and  
                 nonrecurring event.

             c)   If an emergency situation occurs.

          8)Specifies that nothing in these provisions shall be construed  
            to do any of the following:

             a)   Affect the Nursing Practice Act, the Vocational Nursing  
               Practice Act, or a RN's duty under the standards of  
               competent performance.

             b)   Prevent the hiring of part-time or intermittent  
               employees.

             c)   Prevent a facility from providing more protections  
               against mandatory overtime than the minimum protections  
               established by this bill.

          Background

          MOUs for state employee RNs, LVNs, and CNAs contain complex  
          requirements relative to the assignment of overtime and the  
          imposition of mandatory overtime.  In general, employees may  
          volunteer for overtime, and the employer may use intermittent or  
          contract employees if necessary if volunteers are not available.  
           The MOUs limit the amount of overtime that may be mandated in a  








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          month's time, and define the types of emergency situations that  
          may necessitate mandated overtime.  The MOU requirements may be  
          examined in detail on the website of the Department of Human  
          Resources at  
           http://www.calhr.ca.gov/state-hr-professionals/Pages/bargaining-c 
          ontracts.aspx  .

          States departments that use mandatory overtime for nursing staff  
          include California Correctional Health Care Services, which  
          provides nursing staff for the California Department of  
          Corrections and Rehabilitation, the Department of State  
          Hospitals, the Department of Developmental Services, and the  
          California Department of Veterans Affairs.

          In 2015, the Little Hoover Commission conducted hearings and  
          investigations into the use of mandatory overtime for nurses and  
          psychiatric technicians in state departments.  A report of the  
          findings of the commission was released in 2016 and is available  
          on the Commission's website:   
           http://www.lhc.ca.gov/studies/231/Report231.pdf  . 

          The commission found that the state relies heavily on overtime  
          to meet staffing 
          needs and 80 percent of the time, that overtime is voluntary.   
          However, staff also was forced to work 417,226 hours of overtime  
          in 2014-15, "an archaic staffing solution that has been all but  
          abandoned in private and other public health care facilities."

          The report notes that overtime is unsafe for patients and for  
          workers, and that "study after study has found that error rates  
          increase for nurses working long hours."  Additionally, the risk  
          of injury for nurses in an occupation that is already high risk  
          increases with long hours; the costs of overtime are excessive  
          and prohibitive; and when asked specifically about the use of  
          mandatory overtime, officials from both private and public  
          health facilities say the threat of mandatory overtime make it  
          difficult, if not impossible, to recruit and retain nursing  
          staff.

          The report also notes that in 2001, the state revised the wage  
          order that covers employees working in health care facilities,  
          limiting staff that agrees to alternative work schedules to no  
          more than 12 hours of work in a 24-hour period.  After the wage  
          order amendment, private sector health facilities moved toward  
          12-hour shifts, which significantly reduced overtime, whether  








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          voluntary or mandatory.  The wage order, however, does not apply  
          to employees covered by collective bargaining agreements, which  
          includes all state nurses.

          Related/Prior Legislation

          SB 780 (Mendoza, 2015) is substantially similar to this bill and  
          prohibits mandatory overtime for state employee psychiatric  
          technicians.  SB 780 is currently in the Assembly Committee on  
          Public Employment, Retirement, and Social Security.

          AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory  
          overtime for RNs, LVNs, and CNAs.  The bill was vetoed by the  
          Governor.  In his veto message, the Governor stated, in part,  
          "This bill would prohibit mandatory overtime for nurses in state  
          facilities.  This measure covers matters more appropriately  
          settled through the collective bargaining process."

          AB 1184 (Koretz, 2005) was similar to AB 2155 and was vetoed by  
          Governor Schwarzenegger because the state was having a difficult  
          time recruiting and training nurses for state hospitals and the  
          bill would "unilaterally establish provisions governing hours of  
          work for represented health care employees, thereby,  
          circumventing the collective bargaining process and the  
          collective bargaining agreements negotiated between the  
          parties."

          FISCAL EFFECT:                 Appropriation:  No    Fiscal  
          Com.:             Yes          Local:          No


          According to the Assembly Appropriations Committee, AB 840 could  
          result in "annual GF costs greater than $3.0 million to the  
          Department of State Hospitals and the Department of Corrections  
          and Rehabilitation to hire additional nurses to cover the hours  
          currently worked as mandatory overtime; additional GF costs  
          likely to hire additional CNAs."

          SUPPORT:

          Service Employees International Union, Local 1000 (source)
          California Association of Psychiatric Technicians
          California Employment Lawyers Association
          California State Council of the Service Employees International  
          Union








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          OPPOSITION:

          Department of State Hospitals

          ARGUMENTS IN SUPPORT:

          According to the author:

               Mandatory overtime is the practice of hospitals and health  
               care institutions to maintain adequate numbers of staff  
               nurses through forced overtime, usually with a total of 12  
               to 16 hours worked, and with as little as one hour's  
               notice.  This bill seeks to ban mandatory overtime for  
               public sector RNs, LVNs, and CNAs.  The use of mandatory  
               overtime for nurses in the private sector has been banned  
               since 2001 through wage orders from the Industrial Welfare  
               Commission.  State and public sector nurses were exempted  
               from this order.

               Mandatory overtime may cause or lead to increased stress on  
               the job, less patient comfort and mental and physical  
               fatigue that can contribute to errors and 'near-misses'  
               with medications and case-related procedures.  The practice  
               of mandatory overtime ignores the responsibilities nurses  
               may have at home with children, other family members, or  
               other obligations.  Being forced into excessive overtime  
               can cause an exhausted RN to practice unsafe patient care,  
               jeopardizing her nursing licensure status.

               The states of West Virginia, Illinois, Connecticut,  
               Washington, Oregon, New Jersey, Minnesota, Maine, Maryland,  
               Alaska and Massachusetts all have laws prohibiting the use  
               of mandatory overtime as a general staffing tool.

               The continued practice of mandatory overtime in California  
               places the state in the position of undoing its hard work  
               in the training, recruitment and retention of public sector  
               nurses by fostering a dangerous work environment.   
               Additionally, the use of mandatory overtime as a scheduling  
               tool creates no incentive for the state to properly hire,  
               schedule or retain staff.  Lastly, this policy opens up the  
               state to costly lawsuits due to inadequate care and/or  
               medical errors due to fatigue.  A ban on mandatory overtime  
               is standard practice in private hospitals and other public  








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               hospitals in California and throughout the United States;  
               however, only facilities operating under the State of  
               California use this unsafe and ineffective practice.
          
          The bill's sponsor, Service Employees International Union, Local  
          1000, states that "AB 840 is a good governance bill that  
          encourages a strong civil service system by streamlining the  
          mandatory overtime requirements for all nurses in California,  
          bringing state health care quality and safety standards in line  
          with the private sector, while resulting in major cost savings  
          for the state."
          
          ARGUMENTS IN OPPOSITION:    

          According to the Department of State Hospitals:
          
               This bill would interfere with the collective bargaining  
               process, which is the most appropriate venue for dealing  
               with issues such as overtime rules.




               We share concerns regarding the use of overtime in state  
               hospital facilities, and are actively seeking ways to  
               reduce our reliance on mandatory overtime.  However, our  
               facilities operate 24 hours a day, 365 days a year, and are  
               subject to strict staffing requirements by licensing and  
               regulatory entities.  Given our department's  
               well?documented struggles to recruit and retain staff, a  
               statutory prohibition on mandatory overtime would limit our  
               ability to provide legally mandated care to our patient  
               population, and could put our facilities in danger of  
               closure.