The State Civil Service Act generally requires the workweek of state employees to be 40 hours, and the workday of state employees to be 8 hours. Under the act, it is the policy of the state to avoid the necessity for overtime work whenever possible.

This bill, commencing January 1, 2019, would prohibit a nurse or Certified Nursing Assistant (CNA), as defined, employed by the State of California in a specified type of facility from being compelled to work in excess of the regularly scheduled workweek or work shift, except under certain circumstances. The bill would authorize a nurse or CNA to volunteer or agree to work hours in addition to his or her regularly scheduled workweek or work shift, but the refusal to accept those additional hours would not constitute patient abandonment or neglect or be grounds for discrimination, dismissal, discharge, or any other penalty or employment decision adverse to the nurse or CNA.

This bill would require such a facility to establish a 8-member joint labor management task force, with membership as prescribed, to meet quarterly to develop specific recommendations and a plan to reduce or eliminate mandatory overtime. The bill would require a task force, on or before November 1, 2018, to prepare and submit to the Legislature a report on its recommendations. Those task force and report provisions would be repealed on January 1, 2019.

The bill would make a related statement of legislative intent.

The State Civil Service Act generally requires the workweek of state employees to be 40 hours, and the workday of state employees to be 8 hours. Under the act, it is the policy of the state to avoid the necessity for overtime work whenever possible.

This bill, commencing January 1, 2017, 2019, would prohibit a nurse or Certified Nursing Assistant (CNA), as defined, employed by the State of California in a specified type of facility from being compelled to work in excess of the regularly scheduled workweek or work shift, except under certain circumstances. The bill would authorize a nurse or CNA to volunteer or agree to work hours in addition to his or her regularly scheduled workweek or work shift, but the refusal to accept those additional hours would not constitute patient abandonment or neglect or be grounds for discrimination, dismissal, discharge, or any other penalty or employment decision adverse to the nurse or CNA.

The bill would make a related statement of legislative intent.

The State Civil Service Act generally requires the workweek of state employees to be 40 hours, and the workday of state employees to be 8 hours. Under the act, it is the policy of the state to avoid the necessity for overtime work whenever possible.

This bill, commencing January 1, 2017, would prohibit a nurse or Certified Nursing Assistant (CNA), as defined, employed by the State of California in a specified type of facility from being compelled to work in excess of the regularly scheduled workweek or work shift, except under certain circumstances. The bill would authorize a nurse or CNA to volunteer or agree to work hours in addition to his or her regularly scheduled workweek or work shift, but the refusal to accept those additional hours would not constitute patient abandonment or neglect or be grounds for discrimination, dismissal, discharge, or any other penalty or employment decision adverse to the nurse or CNA.

This bill would make a related statement of legislative intent.

GOVERNOR'S VETO

GV Bill Id:AB 840

Author:(Ridley-Thomas)

As Enrolled Ver:September 1, 2016

2/3 vote

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 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:
   1. To any nurse or CNA participating in a surgical procedure, as specified;
   2. If a catastrophic event occurs in a facility where both of the following apply:
      1. 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,
      2. The catastrophic event is an unanticipated and nonrecurring event.
   3. If an emergency situation occurs.
8. Specifies that nothing in these provisions shall be construed to do any of the following:
   1. Affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a registered nurse's duty under the standards of competent performance.
   2. Prevent the hiring of part-time or intermittent employees.
   3. Prevent a facility from providing more protections against mandatory overtime than the minimum protections 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 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 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 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 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."

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

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 840

Author:(Ridley-Thomas)

As Amended Ver:August 18, 2016

Majority vote

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 8-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:
   1. To any nurse or CNA participating in a surgical procedure, as specified;
   2. If a catastrophic event occurs in a facility where both of the following apply:
      1. 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,
      2. The catastrophic event is an unanticipated and nonrecurring event.
   3. If an emergency situation occurs.
8. Specifies that nothing in these provisions shall be construed to do any of the following:
   1. Affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a registered nurse's duty under the standards of competent performance.
   2. Prevent the hiring of part-time or intermittent employees.
   3. Prevent a facility from providing more protections against mandatory overtime than the minimum protections 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 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 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 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 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."

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.

Analysis Prepared by: Karon Green / P.E.,R., & S.S. / (916) 319-3957 FN: 0004721

 THIRD READING  

Bill No: AB 840

Author: Ridley-Thomas (D)

Amended: 8/18/16 in Senate

Vote: 21

SENATE PUBLIC EMP. & RET. COMMITTEE: 3-0, 6/27/16

AYES: Pan, Beall, Hall

NO VOTE RECORDED: Morrell, Moorlach

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 57-21, 6/2/15 - See last page for vote

SUBJECT: Nurses and certified nurse assistants: overtime

SOURCE: Service Employees International Union, Local 1000

DIGEST: This bill prohibits, beginning January 1, 2019, mandatory overtime for registered nurses (RNs), licensed vocational nurses (LVNs), or certified nursing assistants (CNAs) who are employed in state hospitals and facilities, as specified. In addition, this bill requires the departments affected by the bill to establish joint labor management task forces to develop plans and make recommendations to reduce or eliminate mandatory overtime. This bill specifies the requirements for the task force membership and recommendations. These requirements to create task forces remain in place until January 1, 2019, and are then repealed.

Senate Floor Amendments of 8/18/16 require the departments affected by the bill to establish joint labor management task forces to develop plans and make recommendations to reduce or eliminate mandatory overtime. The amendments lay out the requirements for the task force membership and recommendations. These requirements remain in place until January 1, 2019, and are then repealed. Finally, the amendments change current requirement to eliminate mandatory overtime by January 1, 2016, to January 1, 2019.

ANALYSIS:

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. Provides, under the provisions of the Ralph C. Dills Acts, a statutory framework for the state and its represented employees to collectively bargain over issues impacting wages and working conditions. The memoranda of understanding (MOU) between the state and state employee RNs (bargaining unit—or BU—17) and LVNs and CNAs (BU 20) contain provisions governing the use of overtime and mandatory overtime.

This bill:

1. Defines a "nurse" as all classifications of RNs represented by BU 17, or the LVN classifications represented by BU 20, and defines a "certified nursing assistant" as all CNA classifications represented by BU 20.
2. 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.
3. Defines "emergency situation" as an unforeseeable declared national, state, or municipal emergency or a highly unusual event that is unpredictable or unavoidable that affects health care services, such as an act of terrorism; a natural disaster; an outbreak of disease; or a declared emergency, as specified.
4. Prohibits, beginning January 1, 2019, a facility from requiring a nurse or CNA to work in excess of a regularly scheduled workweek or work shift, except as provided, but authorizes a nurse or CNA to volunteer to work extra hours. 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.
5. Provides that the overtime prohibition does not apply in the following situations:
   1. To any nurse or CNA participating in a surgical procedure, as specified.
   2. If a catastrophic event occurs in a facility where both of the following apply:
      1. 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,
      2. The catastrophic event is an unanticipated and nonrecurring event.
   3. If an emergency situation occurs.
6. Specifies that nothing in these provisions shall be construed to do any of the following: affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a RN’s duty under the standards of competent performance; prevent the hiring of part-time or intermittent employees; or prevent a facility from providing more protections against mandatory overtime than the minimum protections established by this bill.
7. Requires that the impacted state facilities, in cooperation with employee representatives, establish joint labor management task forces, composed of eight members—four from management and four from labor—which shall meet quarterly, to develop plans and make recommendations to reduce or eliminate mandatory overtime.
8. Requires that the recommendations include specific items, as specified, including patient and staff needs ascertained by tracking trends in patient needs, overtime use, and staffing procedures; training for applicable employees on staffing principles and best practices; and assessment and staffing best practices, contingency staffing plans, staff engagement, and creative solutions.
9. Requires, on or before November 1, 2018, that the task force prepare and submit to the Legislature a report on its recommendations, which shall include specified information, including numbers of hours of mandatory and voluntary overtime worked; complaints resulting in civil action or criminal prosecution; and recommendations for modifying or continuing task force activities, and statutory changes, as specified.
10. Requires that the provisions requiring the formation of task forces shall remain in effect until January 1, 2019.
11. Requires that the provisions eliminating mandatory overtime shall become effective on January 1, 2019.

Background

MOUs for state employee RNs, LVNs, and CNAs contain complex requirements relative to the assignment of overtime and the imposition of mandatory overtime. In general, employees may volunteer for overtime, and the employer may use intermittent or contract employees if necessary if volunteers are not available. The MOUs limit the amount of overtime that may be mandated in a month’s time, and define the types of emergency situations that may necessitate mandated overtime. The MOU requirements may be examined in detail on the Web site of the Department of Human Resources at http://www.calhr.ca.gov/state-hr-professionals/Pages/bargaining-contracts.aspx .

States departments that use mandatory overtime for nursing staff include California Correctional Health Care Services, which provides nursing staff for the California Department of Corrections and Rehabilitation, the Department of State Hospitals, the Department of Developmental Services, and the California Department of Veterans Affairs.

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 and is available on the Commission’s Web site: http://www.lhc.ca.gov/studies/231/Report231.pdf .

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

The report also notes that in 2001, the state revised the wage order that covers employees working in health care facilities, limiting staff that agrees to alternative work schedules to no more than 12 hours of work in a 24-hour period. After the wage order amendment, private sector health facilities moved toward 12-hour shifts, which significantly reduced overtime, whether voluntary or mandatory. The wage order, however, does not apply to employees covered by collective bargaining agreements, which includes all state nurses.

Related/Prior Legislation

SB 780 (Mendoza, 2015) is substantially similar to this bill and prohibits mandatory overtime for state employee psychiatric technicians.

AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory overtime for RNs, LVNs, and CNAs. The bill 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."

AB 1184 (Koretz, 2005) was similar to AB 2155 and was vetoed by Governor Schwarzenegger because the state was having a difficult time recruiting and training nurses for state hospitals and the bill would “unilaterally establish provisions governing hours of work for represented health care employees, thereby, circumventing the collective bargaining process and the collective bargaining agreements negotiated between the parties.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• Net General Fund costs in the high hundreds of thousands of dollars annually to the Department of State Hospitals (DSH).
• Unknown annual net costs to the California Department of Corrections and Rehabilitation and the Department of Veterans’ Affairs. (General Fund).

During 2014, DSH mandated a total of 36,712 overtime hours for 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 3 LVN’s 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.

SUPPORT: (Verified 8/18/16)

Service Employees International Union, Local 1000 (source)

California Association of Psychiatric Technicians

California Employment Lawyers Association

California State Council of the Service Employees International Union

OPPOSITION: (Verified 8/18/16)

Department of Developmental Services

Department of State Hospitals

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

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 bill’s sponsor, Service Employees International Union, Local 1000, states that “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, bringing state health care quality and safety standards in line with the private sector, while resulting in major cost savings for the state.”

ARGUMENTS IN OPPOSITION: According to the Department of State Hospitals:

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.

ASSEMBLY FLOOR: 57-21, 6/2/15

AYES: Achadjian, Alejo, Bloom, Bonilla, Bonta, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner

NO VOTE RECORDED: Brown, Chávez

Prepared by: Pamela Schneider / P.E. & R. / (916) 651-1519

8/19/16 18:49:13

**** END ****

 THIRD READING  

Bill No: AB 840

Author: Ridley-Thomas (D)

Introduced: 2/26/15

Vote: 21

SENATE PUBLIC EMP. & RET. COMMITTEE: 3-0, 6/27/16

AYES: Pan, Beall, Hall

NO VOTE RECORDED: Morrell, Moorlach

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 57-21, 6/2/15 - See last page for vote

SUBJECT: Nurses and certified nurse assistants: overtime

SOURCE: Service Employees International Union, Local 1000

DIGEST: This bill prohibits, beginning January 1, 2017, mandatory overtime for registered nurses (RNs), licensed vocational nurses (LVNs), or certified nursing assistants (CNAs) who are employed in state hospitals and facilities, as specified.

ANALYSIS:

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. Provides, under the provisions of the Ralph C. Dills Acts, a statutory framework for the state and its represented employees to collectively bargain over issues impacting wages and working conditions. The memoranda of understanding (MOU) between the state and state employee RNs (bargaining unit—or BU—17) and LVNs and CNAs (BU 20) contain provisions governing the use of overtime and mandatory overtime.

This bill:

1. Defines a "nurse" as all classifications of RNs represented by BU 17, or the LVN classifications represented by BU 20, and defines a "certified nursing assistant" as all CNA classifications represented by BU 20.
2. 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.
3. Defines "emergency situation" as an unforeseeable declared national, state, or municipal emergency or a highly unusual event that is unpredictable or unavoidable that affects health care services, such as an act of terrorism; a natural disaster; an outbreak of disease; or a declared emergency, as specified.
4. Prohibits a facility from requiring a nurse or CNA to work in excess of a regularly scheduled workweek or work shift, except as provided, but authorizes a nurse or CNA to volunteer to work extra hours. 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.
5. Provides that the overtime prohibition does not apply in the following situations:
   1. To any nurse or CNA participating in a surgical procedure, as specified.
   2. If a catastrophic event occurs in a facility where both of the following apply:
      1. 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,
      2. The catastrophic event is an unanticipated and nonrecurring event.
   3. If an emergency situation occurs.
   4. Specifies that nothing in these provisions shall be construed to do any of the following: affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a RN’s duty under the standards of competent performance; prevent the hiring of part-time or intermittent employees; or prevent a facility from providing more protections against mandatory overtime than the minimum protections established by this bill.

Background

MOUs for state employee RNs, LVNs, and CNAs contain complex requirements relative to the assignment of overtime and the imposition of mandatory overtime. In general, employees may volunteer for overtime, and the employer may use intermittent or contract employees if necessary if volunteers are not available. The MOUs limit the amount of overtime that may be mandated in a month’s time, and define the types of emergency situations that may necessitate mandated overtime. The MOU requirements may be examined in detail on the Web site of the Department of Human Resources at http://www.calhr.ca.gov/state-hr-professionals/Pages/bargaining-contracts.aspx .

States departments that use mandatory overtime for nursing staff include California Correctional Health Care Services, which provides nursing staff for the California Department of Corrections and Rehabilitation, the Department of State Hospitals, the Department of Developmental Services, and the California Department of Veterans Affairs.

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 and is available on the Commission’s Web site: http://www.lhc.ca.gov/studies/231/Report231.pdf .

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

The report also notes that in 2001, the state revised the wage order that covers employees working in health care facilities, limiting staff that agrees to alternative work schedules to no more than 12 hours of work in a 24-hour period. After the wage order amendment, private sector health facilities moved toward 12-hour shifts, which significantly reduced overtime, whether voluntary or mandatory. The wage order, however, does not apply to employees covered by collective bargaining agreements, which includes all state nurses.

Related/Prior Legislation

SB 780 (Mendoza, 2015) is substantially similar to this bill and prohibits mandatory overtime for state employee psychiatric technicians.

AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory overtime for RNs, LVNs, and CNAs. The bill 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."

AB 1184 (Koretz, 2005) was similar to AB 2155 and was vetoed by Governor Schwarzenegger because the state was having a difficult time recruiting and training nurses for state hospitals and the bill would “unilaterally establish provisions governing hours of work for represented health care employees, thereby, circumventing the collective bargaining process and the collective bargaining agreements negotiated between the parties.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• Net General Fund costs in the high hundreds of thousands of dollars annually to the Department of State Hospitals.
• Unknown annual net costs to the California Department of Corrections and Rehabilitation and the Department of Veterans’ Affairs. (General Fund).

During 2014, DSH mandated a total of 36,712 overtime hours for 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 LVN’s 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.

SUPPORT: (Verified 8/11/16)

Service Employees International Union, Local 1000 (source)

California Association of Psychiatric Technicians

California Employment Lawyers Association

California State Council of the Service Employees International Union

OPPOSITION: (Verified 8/11/16)

Department of Developmental Services

Department of State Hospitals

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

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 bill’s sponsor, Service Employees International Union, Local 1000, states that “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, bringing state health care quality and safety standards in line with the private sector, while resulting in major cost savings for the state.”

ARGUMENTS IN OPPOSITION: According to the Department of State Hospitals:

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.

ASSEMBLY FLOOR: 57-21, 6/2/15

AYES: Achadjian, Alejo, Bloom, Bonilla, Bonta, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner

NO VOTE RECORDED: Brown, Chávez

Prepared by: Pamela Schneider / P.E. & R. / (916) 651-1519

8/15/16 20:26:50

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 840 (Ridley-Thomas) - Nurses and certified nurse assistants: overtime

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 840 would prohibit, beginning January 1, 2017, mandatory overtime for registered nurses (RNs), licensed vocational nurses (LVNs), or certified nursing assistants (CNAs) who are employed in state hospitals and facilities, as specified.

Fiscal Impact:

• Net General Fund costs in the high hundreds of thousands of dollars annually to the Department of State Hospitals (DSH).
• Unknown annual net costs to the California Department of Corrections and Rehabilitation (CDCR) and the Department of Veterans’ Affairs. (General Fund).

During 2014, DSH mandated a total of 36,712 overtime hours for 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 3 LVN’s 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.

Background:

California’s state hospitals primarily serve patients through DSH, CDCR, and the Department of Veterans Affairs. State hospitals and facilities in remote locations typically encounter difficulties in the recruitment and retention of nurses.

Proposed Law:

This bill would do all of the following:

• Prohibit a facility from requiring a nurse or CAN, as defined, to work in excess of a regularly scheduled workweek or work shift, except as provided.
• Authorize 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.
• Provide that the overtime prohibition does not apply in the following situations:
  • To any nurse or CNA participating in a surgical procedure, as specified.
  • If a catastrophic event occurs in a facility where both of the following apply:
    • 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,
    • The catastrophic event is an unanticipated and nonrecurring event.
  • If an emergency situation (as defined) occurs.
• Specify that nothing in these provisions shall be construed to do any of the following:
  • Affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a RN’s duty under the standards of competent performance.
  • Prevent the hiring of part-time or intermittent employees.
  • Prevent a facility from providing more protections against mandatory overtime than the minimum protections established by this bill.

Related Legislation:

• SB 780 (Mendoza, 2015) is substantially similar to this bill and prohibits mandatory overtime for state employee psychiatric technicians. SB 780 is currently in the Assembly Appropriations Committee.
• AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory overtime for RNs, LVNs, and CNAs. The bill was vetoed by the Governor.
• AB 1184 (Koretz, 2005) was similar to AB 2155 and was also vetoed, by Governor Schwarzenegger.

Staff Comments:

MOUs for state employee RNs, LVNs, and CNAs contain complex requirements relative to the assignment of overtime and the imposition of mandatory overtime. In general, employees may volunteer for overtime, and the employer may use intermittent or contract employees if necessary if volunteers are not available. The MOUs limit the amount of overtime that may be mandated in a month’s time, and define the types of emergency situations that may necessitate mandated overtime. The MOU requirements may be examined in detail on the website of the Department of Human Resources at http://www.calhr.ca.gov/state-hr-professionals/Pages/bargaining-contracts.aspx.

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 and is available on the Commission’s website: http://www.lhc.ca.gov/studies/231/Report231.pdf . The Commission concluded that the State relies heavily on overtime to meet staffing needs and 80 percent of the time, that overtime is voluntary. However, staff also was forced to work 417,226 hours of overtime in 2014-15.

The report also notes that in 2001, the state revised the wage order that covers employees working in health care facilities, limiting staff that agrees to alternative work schedules to no more than 12 hours of work in a 24-hour period. After the wage order amendment, private sector health facilities moved toward 12-hour shifts, which significantly reduced overtime, whether voluntary or mandatory. The wage order, however, does not apply to employees covered by collective bargaining agreements, which includes all state nurses.

-- END --

SENATE COMMITTEE ON

PUBLIC EMPLOYMENT AND RETIREMENT

Dr. Richard Pan, Chair

2015 - 2016 Regular

Bill No: AB 840 Hearing Date: 6/27/16

Subject: Nurses and certified nurse assistants: overtime

SOURCE: Service Employees International Union, Local 1000

ASSEMBLY VOTES:

DIGEST: This bill prohibits, beginning January 1, 2017, mandatory overtime for registered nurses (RNs), licensed vocational nurses (LVNs), or certified nursing assistants (CNAs) who are employed in state hospitals and facilities, as specified.

ANALYSIS:

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 Acts, provides a statutory framework for the State and its represented employees to collectively bargain over issues impacting wages and working conditions. The memoranda of understanding (MOU) between the State and state employee RNs (bargaining unit—or BU—17) and LVNs and CNAs (BU 20) contain provisions governing the use of overtime and mandatory overtime.

This bill:

1. Defines a "nurse" as all classifications of RNs represented by 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 health care services, such as an act of terrorism; a natural disaster; an outbreak of disease; or a declared emergency, 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:
   1. To any nurse or CNA participating in a surgical procedure, as specified.
   2. If a catastrophic event occurs in a facility where both of the following apply:
      1. 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,
      2. The catastrophic event is an unanticipated and nonrecurring event.
   3. If an emergency situation occurs.
8. Specifies that nothing in these provisions shall be construed to do any of the following:
   1. Affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a RN’s duty under the standards of competent performance.
   2. Prevent the hiring of part-time or intermittent employees.
   3. Prevent a facility from providing more protections against mandatory overtime than the minimum protections established by this bill.

Background

MOUs for state employee RNs, LVNs, and CNAs contain complex requirements relative to the assignment of overtime and the imposition of mandatory overtime. In general, employees may volunteer for overtime, and the employer may use intermittent or contract employees if necessary if volunteers are not available. The MOUs limit the amount of overtime that may be mandated in a month’s time, and define the types of emergency situations that may necessitate mandated overtime. The MOU requirements may be examined in detail on the website of the Department of Human Resources at http://www.calhr.ca.gov/state-hr-professionals/Pages/bargaining-contracts.aspx .

States departments that use mandatory overtime for nursing staff include California Correctional Health Care Services, which provides nursing staff for the California Department of Corrections and Rehabilitation, the Department of State Hospitals, the Department of Developmental Services, and the California Department of Veterans Affairs.

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 and is available on the Commission’s website: http://www.lhc.ca.gov/studies/231/Report231.pdf .

The commission found that the state relies heavily on overtime to meet staffing

needs and 80 percent 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 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.

The report also notes that in 2001, the state revised the wage order that covers employees working in health care facilities, limiting staff that agrees to alternative work schedules to no more than 12 hours of work in a 24-hour period. After the wage order amendment, private sector health facilities moved toward 12-hour shifts, which significantly reduced overtime, whether voluntary or mandatory. The wage order, however, does not apply to employees covered by collective bargaining agreements, which includes all state nurses.

Related/Prior Legislation

SB 780 (Mendoza, 2015) is substantially similar to this bill and prohibits mandatory overtime for state employee psychiatric technicians. SB 780 is currently in the Assembly Committee on Public Employment, Retirement, and Social Security.

AB 2155 (Ridley-Thomas, 2014) would have prohibited mandatory overtime for RNs, LVNs, and CNAs. The bill 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."

AB 1184 (Koretz, 2005) was similar to AB 2155 and was vetoed by Governor Schwarzenegger because the state was having a difficult time recruiting and training nurses for state hospitals and the bill would “unilaterally establish provisions governing hours of work for represented health care employees, thereby, circumventing the collective bargaining process and the collective bargaining agreements negotiated between the parties.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, AB 840 could result in “annual GF costs greater than $3.0 million to the Department of State Hospitals and the Department of Corrections and Rehabilitation to hire additional nurses to cover the hours currently worked as mandatory overtime; additional GF costs likely to hire additional CNAs.”

SUPPORT:

Service Employees International Union, Local 1000 (source)

California Association of Psychiatric Technicians

California Employment Lawyers Association

California State Council of the Service Employees International Union

OPPOSITION:

Department of State Hospitals

ARGUMENTS IN SUPPORT:

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

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 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. A ban on mandatory overtime is standard practice in private hospitals and other public hospitals in California and throughout the United States; however, only facilities operating under the State of California use this unsafe and ineffective practice.

The bill’s sponsor, Service Employees International Union, Local 1000, states that “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, bringing state health care quality and safety standards in line with the private sector, while resulting in major cost savings for the state.”

ARGUMENTS IN OPPOSITION:

According to the Department of State Hospitals:

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 well­documented 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.

ASSEMBLY THIRD READING

ATR Bill Id:AB 840

Author:(Ridley-Thomas)

As Introduced Ver:February 26, 2015

Majority vote

SUMMARY: Prohibits, beginning January 1, 2017, mandatory overtime for registered nurses, licensed vocational nurses (LVNs), or certified nursing assistants (CNAs) who are employed in state hospitals and facilities. 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:

   1. To any nurse or CNA participating in a surgical procedure, as specified;

   2. If a catastrophic event occurs in a facility where both of the following apply:

      1. 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,

      2. The catastrophic event is an unanticipated and nonrecurring event.

   3. If an emergency situation occurs.

8. Specifies that nothing in these provisions shall be construed to do any of the following:

   1. Affect the Nursing Practice Act, the Vocational Nursing Practice Act, or a registered nurse's duty under the standards of competent performance.

   2. Prevent the hiring of part-time or intermittent employees.

   3. Prevent a facility from providing more protections against mandatory overtime than the minimum protections established by this bill.

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 Assembly Appropriations Committee, annual General Fund (GF) costs greater than $3 million to the Department of State Hospitals (DSH) and the Department of Corrections and Rehabilitation to hire additional nurses to cover the hours currently worked as mandatory overtime; additional GF costs likely to hire additional CNAs.

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 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."

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."

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."

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.

There is no opposition on file.

Analysis Prepared by: Karon Green / P.E.,R., & S.S. / (916) 319-3957 FN: 0000593

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 840

Author:(Ridley-Thomas) – As Introduced Ver:February 26, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits mandatory overtime for registered nurses, licensed vocational nurses, and certified nursing assistants (CNAs) employed in state hospitals and facilities, except under the following circumstances:

1) When that nurse or CNA is participating in a surgical procedure and that procedure is still in progress or has not been completed.

2) When an unanticipated and non-recurring catastrophic event has occurred and 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.

FISCAL EFFECT:

Annual GF costs greater than $3.0 million to the Department of State Hospitals (DSH) and the Department of Corrections and Rehabilitation (DCR) to hire additional nurses to cover the hours currently worked as mandatory overtime; additional GF costs likely to hire additional CNAs.

COMMENTS:

1) Purpose. According to the author, mandatory overtime is a practice used by hospitals and health care institutions to maintain adequate numbers of staff nurses through forced overtime, often with a total of twelve to sixteen hours worked. This bill bans mandatory overtime for public sector nurses and CNAs. The use of mandatory overtime for nurses in the private sector was banned in 2001 through wage orders from the Industrial Welfare Commission. State and public sector nurses were exempted from this order.

According to the author, mandatory overtime may cause or lead to increased stress on nurses and CNAs, less patient comfort, and mental and physical fatigue among nurses and CNAs, contributing to errors and "near-misses" with medications and case-related procedures. According to information provided by the author, West Virginia, Illinois, Connecticut, Washington, Oregon, New Jersey, Minnesota, Maine, Maryland, Alaska, and Massachusetts have laws prohibiting the use of mandatory overtime as a general staffing practice.

2) Difficulty recruiting state nurses. California's state hospitals primarily serve patients within the criminal justice system. The challenges associated with treating this patient population have historically led to difficulties in attracting nursing staff, particularly to state hospitals and facilities in remote locations.

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. According to DSH and DCR, those difficulties continue to hamper current efforts to recruit nurses and CNAs.

3) If At First You Don't Succeed… The state's current mandatory overtime rules with nurses and CNAs were subject to and agreed upon in collective bargaining agreements between the state and hospital employees. This bill risks circumventing the collective bargaining process and the good faith collective bargaining agreements negotiated between the parties by imposing additional statutory restrictions on hours, an area previously left to the collective bargaining process.

This bill is very similar to AB 2155 (Ridley-Thomas) from last year, which also attempted to modify terms agreed to in collective bargaining, and was vetoed by the Governor. In his veto message, the Governor stated "[the] measure covers matters more appropriately settled through the collective bargaining process."

Analysis Prepared by: Joel Tashjian / APPR. / (916) 319-2081