BILL ANALYSIS Ó
AB 840
Page 1
GOVERNOR'S VETO
AB
840 (Ridley-Thomas)
As Enrolled September 1, 2016
2/3 vote
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|ASSEMBLY: |57-21 |(June 2, 2015) |SENATE: |26-13 |(August 22, |
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|ASSEMBLY: |57-21 |(August 25, | | | |
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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:
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