BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 840


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          GOVERNOR'S VETO


          AB  
          840 (Ridley-Thomas)


          As Enrolled  September 1, 2016


          2/3 vote


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          Original Committee Reference:  P.E.,R., & S.S.




          SUMMARY:  Prohibits, beginning January 1, 2019, mandatory  
          overtime for registered nurses, licensed vocational nurses  
          (LVNs), or certified nursing assistants (CNAs) who are employed  
          in state hospitals and facilities and establishes an  








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          eight-member joint labor management task force to make  
          recommendations and develop a plan to reduce or eliminate  
          mandatory overtime, as specified.  Specifically, this bill:  


          1)Defines a "nurse" as all classifications of registered nurses  
            represented by State Bargaining Unit (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 the  
            health care services, 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  
            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:








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             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 registered nurse'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  








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               established by this bill.


          9)Requires each facility, as specified, to establish a joint  
            labor management task force to make recommendation and develop  
            a plan to reduce or eliminate mandatory overtime.


          10)Specifies that the task force will be composed of eight  
            members consisting of four representatives for the facility  
            and four labor union representatives and requires the task  
            force to meet quarterly to develop recommendations.


          11)Requires, on or before November 1, 2018, the task force to  
            prepare and submit to the Legislature a report on its  
            recommendations which must include certain specified  
            information.


          12)Repeals the task force and report provisions as of January 1,  
            2019.


          The Senate amendments:


          1)Change the effective date of the bill's provisions from  
            January 1, 2017, to January 1, 2019.


          2)Requires each facility, as specified, to establish an 8-member  
            joint labor management task force to make recommendations and  
            develop a plan to reduce or eliminate mandatory overtime, as  
            specified.


          3)Requires the task force to prepare and submit to the  
            Legislature a repost on its recommendation on or before  








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            November 1, 2018.


          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)Under the provisions of the Ralph C. Dills Act, provides a  
            statutory framework for the state and its represented  
            employees to collectively bargain over issues impacting wages  
            and working conditions.





          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee:


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


          2)Unknown annual net costs to the California Department of  








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


          3)During 2014, DSH mandated a total of 36,712 overtime hours for  
            registered nurses (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 three LVNs 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.


          COMMENTS:  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  








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            obligations.  Being forced into excessive overtime can cause  
            an exhausted RN to practice unsafe patient care,  
            jeopardizing her nursing licensure status.


          According to information provided by the author, 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 author concludes, "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."


          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.


          The Commission found that the state relies heavily on overtime  
          to meet staffing needs and 80% 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  








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          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.


          Supporters state, "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,  
          resulting in major cost savings for the state; and increased  
          staff, patient and public safety."


          Opponents 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 closure.


          This bill is similar to AB 2155 (Ridley-Thomas) of 2014, which  
          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."










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          In 2005, a similar effort to ban mandatory overtime was proposed  
          in AB 1184 (Koretz) and vetoed by Governor Schwarzenegger  
          because the state was already having a difficult time recruiting  
          and training nurses for state hospitals.


          GOVERNOR'S VETO MESSAGE:


               This bill prohibits mandatory overtime for registered  
               nurses, license vocational nurses, or certified  
               nursing assistants who are employed in state hospitals  
               and facilities beginning January 1, 2019.


               As I stated in a prior veto message, this matter is  
               more appropriately settled through the collective  
               bargaining process.




          Analysis Prepared by:                                             
                          Karon Green / P.E.,R., & S.S. / (916) 319-3957    
                                                                    FN:  
          0005147