Amended in Senate August 19, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2155

Introduced by Assembly Member Ridley-Thomas

February 20, 2014

An act to add Section 19851.2 to the Government Code, relating to state employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 2155, as amended, Ridley-Thomas. Nurses and certified nurse assistants: overtime.

Existing law generally requires the workweek of state employees to be 40 hours, and the workday of state employees to be 8 hours. Under existing law, it is the policy of the state to avoid the necessity for overtime work whenever possible.

This bill begin delete would end delete begin insert would, commencing January 1, 2016, end insert prohibit a nurse, defined as a registered nurse or a licensed vocational nurse, or a certified nursing assistant (CNA), employed by the State of California in a state facility, as defined, from being compelled to work in excess of the regularly scheduled workweek or work shift, except under certain circumstances, including the occurrence of a catastrophic event in a state facility. This bill would prohibit a state facility from discriminating, dismissing, discharging, or making an employment decision adverse to the nurse or CNA for his or her refusal to accept those additional begin delete hours. end delete begin insert hours, and would specify that a refusal to accept those additional hours does not constitute patient abandonment or neglect, as specified. end insert begin insert The bill would require management and supervisors to consider employees in a specified order of priority in order to fulfill the additional staffing needs of a facility. end insert This bill would enact other related provisions.

begin insert

The bill would make a statement of legislative intent with regards to prohibiting mandatory overtime for nurses and CNAs employed by the State of California in a state facility.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert It is the intent of the Legislature to ensure that
there is a process that management and supervisors in a state
health care facility are required to follow to avoid prescheduled
and on-the-spot mandatory overtime of any nurse or certified
nursing assistant (CNA) whose regularly scheduled work shift is
complete, and to prevent circumstances where an employee is
stopped at the gate of, for example, a Department of Corrections
and Rehabilitation and California Correctional Health Care
Services facility, and is instructed to return to work at the end of
their regularly scheduled work shift. It is the intent of the
Legislature to prohibit a state facility that employees nurses or
CNAs 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. end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 19851.2 is added to the Government Code, to
read:

19851.2.  

(a) As used in this section:

(1) “Nurse” means all classifications of registered nurses
represented by State Bargaining Unit 17, or the Licensed
Vocational Nurse classifications represented by State Bargaining
Unit 20.

(2) “CNA” means all Certified Nursing Assistant classifications
represented by State Bargaining Unit 20.

begin insert

(3) “On call or on standby” means alternative staff who are
not currently working on the premises of the facility and who satisfy
either of the following criteria:

end insert begin insert

(A) Are compensated for his or her availability.

end insert begin insert

(B) Has agreed to be available to come to the facility on short
notice, if the need arises.

end insert begin delete

(3)

end delete

begin insert ( end insert begin insert 4) end insert  “Facility” means any begin delete mental hospital, youth or adult
correctional facility, developmental center, veteran’s home, school,
or worksite end delete begin insert facility that provides clinically related health services
that is operated by the Division of Correctional Health Care
Services of the Department of Corrections and Rehabilitation, the
Department of Corrections and Rehabilitation, the State
Department of State Hospitals, the Department of Veteran Affairs,
and the State Department of Developmental Services end insert in which a
nurse or CNA works as an employee of the state.

begin insert

(5) “Management or supervisor” means any person or group
of persons acting directly or indirectly on behalf of, or in the
interest of, the facility, whose duties and responsibilities include
facilitating staffing needs.

end insert begin insert

(6) “Emergency situation” means any of the following:

end insert begin insert

(A) An unforeseeable declared national, state, or municipal
emergency.

end insert begin insert

(B) A highly unusual or extraordinary event that is unpredictable
or unavoidable and that substantially affects providing needed
health care services or increases the need for health care services,
which includes any of the following:

end insert begin insert

(i) An act of terrorism.

end insert begin insert

(ii) A natural disaster.

end insert begin insert

(iii) A widespread disease outbreak.

end insert begin insert

(iv) A warden, superintendent, or executive director-declared
emergency, or severe emergency that necessitates the assistance
of an outside agency.

end insert

(b) A facility shall not require a nurse or CNA to work in excess
of a regularly scheduled workweek or work shift. A nurse or CNA
may volunteer or agree to work hours in addition to his or her
regularly scheduled workweek or work shift but the refusal by a
nurse or CNA to accept those additional hours shall not begin delete be grounds end delete
begin insert constitute either of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert Grounds end insert for discrimination, dismissal, discharge, or any
other penalty or employment decision adverse to the nurse or CNA.

begin insert

(2) Patient abandonment or neglect, except under circumstances
provided for in the Nursing Practice Act (Chapter 6 (commencing
with Section 2700) of Division 2 of the Business and Professions
Code).

end insert begin insert

(c) In order to avoid the use of mandatory overtime as a
scheduling tool, management and supervisors shall consider
employees to fulfill the additional staffing needs of a facility in the
following priority order:

end insert begin insert

(1) First priority shall be given to employees who volunteer or
agree to work hours in addition to his or her regularly scheduled
workweek or work shift.

end insert begin insert

(2) Second priority shall be given to individuals who are
part-time or intermittent employees.

end insert begin insert

(3) Third priority shall be given to employees who are on call
or on standby.

end insert begin delete

(c)

end delete

begin insert ( end insert begin insert d) end insert  This section shall not apply in any of the following
situations:

(1) To a nurse or CNA participating in a surgical procedure
begin delete until that procedure is completed. end delete begin insert in which the nurse is actively
engaged and whose continued presence through the completion
of the procedure is needed to ensure the health and safety of the
patient. end insert

(2) If a catastrophic event occurs in a facility and both of the
following factors apply:

(A) 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.

(B) The catastrophic event is an unanticipated and nonrecurring
event.

begin insert

(3) If an emergency situation occurs.

end insert begin delete

(d)

end delete

begin insert ( end insert begin insert e) end insert  Nothing in this section shall be construed to affect the
Nursing Practice Act (Chapter 6 (commencing with Section 2700)
of Division 2 of the Business and Professions Code), the Vocational
Nursing Practice Act (Chapter 6.5 (commencing with Section
2840) of Division 2 of the Business and Professions Code), or a
registered nurse’s duty under the standards of competent
performance.

begin insert

(f) Nothing in this section shall be construed to preclude a
facility from hiring part-time or intermittent employees.

end insert begin insert

(g) Nothing in this section shall prevent a facility from providing
employees with more protections against mandatory overtime than
the minimum protections established pursuant to this section.

end insert begin insert

(i) This section shall become operative on January 1, 2016.

end insert