BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 840 (Ridley-Thomas) - Nurses and certified nurse assistants:   
          overtime
          
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          |Version: February 26, 2015      |Policy Vote: P.E. & R. 3 - 0    |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 1, 2016    |Consultant: Robert Ingenito     |
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          This bill meets the criteria for referral to the Suspense File.


          


          Bill  
          Summary: AB 840 would prohibit, 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.


          Fiscal  
          Impact: 
                 Net General Fund costs in the high hundreds of thousands  
               of dollars annually to the Department of State Hospitals  
               (DSH).

                 Unknown annual net costs to the California Department of  
               Corrections and Rehabilitation (CDCR) and the Department of  
               Veterans' Affairs. (General Fund). 







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          During 2014, DSH mandated a total of 36,712 overtime hours for  
          RNs and 5,402 overtime hours for LVNs. The total cost of this  
          overtime pay calculated at the mid-step was $33 million.  It is  
          estimated that an additional 19 nurses and 3 LVN's would need to  
          be hired if mandatory overtime was eliminated at an estimated  
          cost of $2.6 million. Comparing the current cost of overtime  
          with the estimated costs of hiring the new staff that this bill  
          would require indicates that this bill could have an annual net  
          fiscal impact of at least $700,000. The actual cost would likely  
          be less since presumably some nurses would voluntarily accept to  
          work the overtime hours.


          Background: California's state hospitals primarily serve patients through  
          DSH, CDCR, and the Department of Veterans Affairs. State  
          hospitals and facilities in remote locations typically encounter  
          difficulties in the recruitment and retention of nurses.  


          Proposed Law:  
          This bill would do all of the following:
                 Prohibit a facility from requiring a nurse or CAN, as  
               defined, to work in excess of a regularly scheduled  
               workweek or work shift, except as provided.


                 Authorize a nurse or CNA to volunteer to work extra  
               hours, but the refusal by a nurse or CNA to work such hours  
               shall not be grounds for discrimination, dismissal,  
               discharge, or other penalty or patient abandonment or  
               neglect, as specified.


                 Provide that the overtime prohibition does not apply in  
               the following situations:


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


                  o         If a catastrophic event occurs in a facility  








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                    where both of the following apply:


                                     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,


                                     The catastrophic event is an  
                         unanticipated and nonrecurring event.


                  o         If an emergency situation (as defined) occurs.


                 Specify that nothing in these provisions shall be  
               construed to do any of the following:


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


                  o         Prevent the hiring of part-time or  
                    intermittent employees.


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







          Related  
          Legislation:
                 SB 780 (Mendoza, 2015) is substantially similar to this  








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               bill and prohibits mandatory overtime for state employee  
               psychiatric technicians.  SB 780 is currently in the  
               Assembly Appropriations Committee.


                 AB 2155 (Ridley-Thomas, 2014) would have prohibited  
               mandatory overtime for RNs, LVNs, and CNAs.  The bill was  
               vetoed by the Governor.


                 AB 1184 (Koretz, 2005) was similar to AB 2155 and was  
               also vetoed, by Governor Schwarzenegger.




          



          Staff  
          Comments: 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  
          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.
          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  
          concluded 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.









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




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