BILL ANALYSIS Ó SB 780 Page 1 Date of Hearing: June 22, 2015 ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT, AND SOCIAL SECURITY Rob Bonta, Chair SB 780 (Mendoza) - As Introduced February 27, 2015 SENATE VOTE: 22-11 SUBJECT: Psychiatric technicians and psychiatric technician assistants: overtime. SUMMARY: Prohibits mandatory overtime for psychiatric technicians (PTs) or psychiatric technician assistants (PTAs) in state hospitals or facilities, except as specified. Specifically, this bill: 1)States that it is the intent of the Legislature to, among other things, prohibit a state facility that employs PTs or PTAs from using mandatory overtime as a scheduling tool, or as an excuse for fulfilling an operational need that results from a management failure to properly staff those state facilities. 2)Prohibits a facility from requiring a PT or PTA to work in excess of a regularly scheduled workweek or work shift, except as provided. SB 780 Page 2 3)Authorizes a PT or PTA to volunteer to work extra hours, but specifies that the refusal by a PT or PTA to work such hours will not be grounds for discrimination, dismissal, discharge or other penalty and do not constitute patient abandonment or neglect. 4)Specifies that in order to avoid the use of mandatory overtime as a scheduling tool, management and supervisors must consider employees to fulfill the additional staffing needs of a facility in the following priority order: a) First priority will be given to employees who volunteer or agree to work hours in addition to their regularly scheduled workweek or work shift. b) Second priority will be given to individuals who are part-time or intermittent employees. c) Third priority will be given to employees who are on call or on standby. 5)Provides that the overtime prohibition does not apply in the following situations: a) To any PT or PTA participating and needed in a surgical procedure until that procedure is completed. b) If a catastrophic event occurs in a facility where both of the following apply: SB 780 Page 3 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 PTs or PTAs 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)Defines "emergency situation" to mean any of the following: a) Unforeseeable declared national, state, or municipal emergency. b) A highly unusual or extraordinary event that is unpredictable or unavoidable and that substantially affects providing needed health care or increases the need for such services, which includes the following: i) An act of terrorism; ii) A natural disaster; iii) A widespread disease outbreak; iv) An emergency declared by a specified official of the facility, or an emergency requiring assistance of an SB 780 Page 4 outside agency. 7)Defines a "facility" as any facility that provides clinically related health services that is operated by the Department of Corrections and Rehabilitation (CDCR), the Department of State Hospitals (DSH), or Department of Developmental Services (DDS) in which a PT or PTA works as an employee of the state. 8)Defines "management or supervisor" as any person or group whose duties and responsibilities include facilitating staffing needs. 9)Defines "on call or standby" to mean alternative staff who are not working on the premises of the facility and who are either compensated for their availability or who have agreed to be available to come to the facility on short notice if the need arises. 10)Defines a "PT" or "PTA" as all classifications of psychiatric technician or psychiatric technician assistant. 11)Specifies that nothing in these provisions shall be construed to affect the Psychiatric Technicians Law or a PT's or PTA's duty under the standards of competent performance. 12)States that these provisions do not preclude a facility from hiring part-time or intermittent employees or prevent a facility from providing more protections against mandatory overtime than required by this section. SB 780 Page 5 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: Approximately $5.7 million to DDS (Special/General Funds) SB 780 Page 6 Approximately $17 million to CDCR (General Fund) Approximately $7.1 million to DSH (Special/General Funds) All of these above costs are for new positions that will replace existing mandatory overtime hours. Therefore, there will be partial offsetting savings to each department for not paying overtime expenses as noted below. The Department of Developmental Services (DDS) indicates that 53 new positions would be needed to cover the number of mandatory overtime hours worked by PTs and PTAs which is about 110,847 hours per year. The cost for the 53 positions is estimated at approximately $5.7 million for salary, benefits, and office expenses and equipment, partially offset by savings from not paying mandatory overtime hours at approximately $5.2 million. The Division of Correctional Health Care Services of the Department of Corrections and Rehabilitation estimates new employee costs of $17 million if it is required to hire one PT per institution per shift. Offsetting savings for not paying overtime hours is likely $10-14 million, but actual savings are unknown at this time. SB 780 Page 7 The Department of State Hospitals had 123,552 hours of mandatory overtime delivered (as opposed to over 1 million hours of voluntary overtime) during 2014. The cost for those overtime hours was approximately $5.7 million, while hiring a minimum number of full time employees to work those hours would be about $7.1 million. Therefore, the net cost to DSH is approximately $1.4 million. COMMENTS: According to the current state bargaining unit contract with state bargaining unit (BU) 18 (Psychiatric Technicians), the following applies: 1)Except in cases of emergency, employees shall not be required to work mandatory overtime: a) More than six mandated overtime shifts of at least two (2) hours duration in a month, or b) In excess of sixteen (16) hours continuously, or c) In excess of two overtime shifts within an employee's scheduled work week, or d) On two consecutive calendar days. SB 780 Page 8 In addition, the contract requires that employees will not be required to work mandatory overtime on their regularly scheduled days off or during scheduled vacation or leave times except in specified emergency situations. Management is also required to find employees who are willing to volunteer for overtime before mandating overtime for employees who do not wish to work overtime. However, the contract allows employees to be mandated to perform overtime when no volunteers are available and all eligible employees are already performing overtime in accordance with facility policy. Finally, the contract prohibits the employees from striking. According to a Little Hoover Commission Report issued in April of 2016, "Last year, nursing staff working in state facilities clocked 3.75 million hours of overtime at a cost of $179 million." The bipartisan citizens commission found the state's overtime is four times the national average -18% of state nursing staff pay is for overtime as compared to an average of 4% nationally for registered nurses and health care workers. According to the Commission, "Most of that overtime for the nurses and psychiatric technicians working in state facilities was voluntary, some 80%, but staff was forced to work 417,226 hours of overtime, an archaic staffing solution all but abandoned in the private and other public health care facilities." SB 780 Page 9 According to the author, "The private sector has banned the practice of mandatory overtime for nursing staff back in 2001; however, the state was exempt from the prohibition. The Little Hoover Commission in its report "Time and Again: Overtime in State Facilities" found state nursing staff work over 3.75 million hours of overtime with 20 percent being mandatory. Additionally, Psych Techs at the Department of State Hospitals alone worked 1.2 million hours of overtime in the 14"-15" fiscal year, and 700,000 hours in the first two quarters of the 15"-16" FY. The same ratio of 20 percent mandatory overtime existed for BU 18 members. This study shed light on the damaging impacts mandatory overtime has on patients and staff working under these conditions. The staff is exhausted and makes medical errors that can have a dramatic impact on the patients under their care and jeopardizes the license they hold." The author concludes, "Furthermore, state collective bargaining contracts set the limitations which mandatory overtime may be utilized. For BU 18, the limitations are: no more than six times in a month, no more than twice in a week, never on back to back days, and never on a staff members Friday. Unfortunately, the state has routinely violated the contract forcing the union to file grievance after grievance. In each case, the union has won their grievances; however, the remedy the state offers is to "not do it again". Unfortunately, they have. The Governor vetoed AB 2155, stating that this was a matter best left to collective bargaining. Unfortunately, this issue has been brought up in collective bargaining before with no movement from the administration. This bill is the only way to ensure that the state staffs its facilities appropriately to provide excellent patient care." SB 780 Page 10 Supporters state, "Mandatory overtime practices can 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 also ignores the responsibilities psych techs have at home with children, other family members, or with other obligations. Furthermore, being forced into excessive overtime can cause an exhausted PT to practice unsafe patient care, jeopardizing their psychiatric technician licensure status." Opponents state that they have "?significant concerns with the impact of prohibiting mandatory overtime for PT and PTA staff with respect to both the quality and consistency of care for DC (developmental center) residents and the substantial costs that would be incurred." AB 840 (Ridley-Thomas) of 2015, prohibits, beginning January 1, 2017, mandatory overtime for registered nurses, licensed vocational nurses, or certified nursing assistants who are employed in state hospitals and facilities. This bill is currently pending in the Senate. AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory overtime for state employees employed as registered nurses, licensed vocational nurses, and certified nursing assistants in state hospitals and facilities. In his veto message, the SB 780 Page 11 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." 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. REGISTERED SUPPORT / OPPOSITION: Support California Association of Psychiatric Technicians (Sponsor) Opposition Department of Developmental Services SB 780 Page 12 Analysis Prepared by:Karon Green / P.E.,R., & S.S. / (916) 319-3957