BILL ANALYSIS Ó
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: | |
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|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
AB 840 (Ridley-Thomas) Page 2 of ?
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
AB 840 (Ridley-Thomas) Page 3 of ?
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
AB 840 (Ridley-Thomas) Page 4 of ?
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
AB 840 (Ridley-Thomas) Page 5 of ?
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
AB 840 (Ridley-Thomas) Page 6 of ?
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
AB 840 (Ridley-Thomas) Page 7 of ?
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.