BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 780


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          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.










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          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:









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               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  








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                 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.








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          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)










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            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.










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            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.








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          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."











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          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."












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          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  








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          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












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