BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 840|
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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
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16
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January 1, 2019, and are then repealed.
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Page 2
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are then repealed.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.
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 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) 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
specified.
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
bill.
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
specified.
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.
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
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
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 Web site:
http://www.lhc.ca.gov/studies/231/Report231.pdf .
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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
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
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.
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
parties."
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
Union
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
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.
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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Wagner
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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