BILL ANALYSIS                                                                                                                                                                                                    Ó

          |SENATE RULES COMMITTEE            |                        AB 840|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 

          Bill No:  AB 840
          Author:   Ridley-Thomas (D) 
          Amended:  8/18/16 in Senate
          Vote:     21 

           SENATE PUBLIC EMP. & RET. COMMITTEE:  3-0, 6/27/16
           AYES:  Pan, Beall, Hall
           NO VOTE RECORDED:  Morrell, Moorlach

           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  57-21, 6/2/15 - See last page for vote

           SUBJECT:   Nurses and certified nurse assistants:  overtime

          SOURCE:    Service Employees International Union, Local 1000

          DIGEST:    This bill prohibits, beginning January 1, 2019,  
          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. In addition, this bill requires the departments  
          affected by the bill to establish joint labor management task  
          forces to develop plans and make recommendations to reduce or  
          eliminate mandatory overtime. This bill specifies the  
          requirements for the task force membership and recommendations.  
          These requirements to create task forces remain in place until  
          January 1, 2019, and are then repealed.  


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          Senate Floor Amendments of 8/18/16 require the departments  
          affected by the bill to establish joint labor management task  
          forces to develop plans and make recommendations to reduce or  
          eliminate mandatory overtime. The amendments lay out the  
          requirements for the task force membership and recommendations.  
          These requirements remain in place until January 1, 2019, and  
          are then repealed.  Finally, the amendments change current  
          requirement to eliminate mandatory overtime by January 1, 2016,  
          to January 1, 2019.


          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 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  

           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) Provides, under the provisions of the Ralph C. Dills Acts, 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:


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           1) Defines a "nurse" as all classifications of RNs represented  
             by BU 17, or the LVN classifications represented by BU 20,  
             and defines a "certified nursing assistant" as all CNA  
             classifications represented by BU 20.

           2) 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.

           3) 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  

           4) Prohibits, beginning January 1, 2019, a facility from  
             requiring a nurse or CNA to work in excess of a regularly  
             scheduled workweek or work shift, except as provided, but  
             authorizes a nurse or CNA to volunteer to work extra hours.  
             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.

           5) 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  


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                  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.

           6) Specifies that nothing in these provisions shall be  
             construed to do any of the following: affect the Nursing  
             Practice Act, the Vocational Nursing Practice Act, or a RN's  
             duty under the standards of competent performance; prevent  
             the hiring of part-time or intermittent employees; or prevent  
             a facility from providing more protections against mandatory  
             overtime than the minimum protections established by this  

           7) Requires that the impacted state facilities, in cooperation  
             with employee representatives, establish joint labor  
             management task forces, composed of eight members-four from  
             management and four from labor-which shall meet quarterly, to  
             develop plans and make recommendations to reduce or eliminate  
             mandatory overtime. 

           8) Requires that the recommendations include specific items, as  
             specified, including patient and staff needs ascertained by  
             tracking trends in patient needs, overtime use, and staffing  
             procedures; training for applicable employees on staffing  
             principles and best practices; and assessment and staffing  
             best practices, contingency staffing plans, staff engagement,  
             and creative solutions.

           9) Requires, on or before November 1, 2018, that the task force  
             prepare and submit to the Legislature a report on its  
             recommendations, which shall include specified information,  
             including numbers of hours of mandatory and voluntary  
             overtime worked; complaints resulting in civil action or  


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             criminal prosecution; and recommendations for modifying or  
             continuing task force activities, and statutory changes, as  

           10)Requires that the provisions requiring the formation of task  
             forces shall remain in effect until January 1, 2019.

           11)Requires that the provisions eliminating mandatory overtime  
             shall become effective on January 1, 2019. 


          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 Web site of the Department of Human  
          Resources at  
          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 Web site:   


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          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  

          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.

          Related/Prior Legislation

          SB 780 (Mendoza, 2015) is substantially similar to this bill and  
          prohibits mandatory overtime for state employee psychiatric  

          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,  


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          "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  

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriations Committee:

           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 and the Department of Veterans'  
            Affairs. (General Fund). 

            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.


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          SUPPORT:   (Verified8/18/16)

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

          OPPOSITION:   (Verified8/18/16)

          Department of Developmental Services
          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,  


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             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 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  

             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  

          ASSEMBLY FLOOR:  57-21, 6/2/15
          AYES:  Achadjian, Alejo, Bloom, Bonilla, Bonta, Burke, Calderon,  
            Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger  
            Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez,  
            Low, Maienschein, McCarty, Medina, Mullin, Nazarian,  
            O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber,  
            Wilk, Williams, Wood, Atkins
          NOES:  Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth  
            Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Mathis,  
            Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth,  


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          NO VOTE RECORDED:  Brown, Chávez

          Prepared by:Pamela Schneider / P.E. & R. / (916) 651-1519
          8/19/16 18:49:13

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