NEW YORK NURSE: January/February 2012
by Mark Genovese
New Jersey state law is crystal clear:
On-call time shall not be construed to permit an employer to use on-call time as a substitute for mandatory overtime.
Yet, management of Shore Memorial Hospital is routinely violating this provision by using on-call nurses to regularly staff its obstetrics unit. So RNs at this Somers Point facility are fighting back – using the law’s procedure for filing complaints.
On-call was instituted in Shore’s OB unit by a previous manager, who made the decision unilaterally – long before the RNs elected NYSNA their representative in 2001.
“OB is a 24-7 unit, like the ER. A unit like this shouldn’t have on-call at all. It should be staffed appropriately,” said one RN. RNs asked that their names not be used for this article. “But it’s been this way for years, because we’re always staffed short.”
“We work a full, regular schedule, then we’re right back because they’re abusing on-call,” added a colleague, who noted that she’d been called in for seven of her last 12 on-call days because of scheduled procedures, such as C-sections. “This means management knew in advance that we wouldn’t have enough staff scheduled.”
RNs report that this abuse has led to them to working additional full, 12-hour shifts with little rest; and disrupting their family lives because they must remain within 30 minutes of the hospital when on-call. The stress and exhaustion have caused many of the nurses to leave for facilities that offer more realistic schedules.
NYSNA negotiating committees have been attacking the policy during contract negotiations. Now that New Jersey has a mandatory overtime ban in place, they’re taking the battle to Trenton.
The New Jersey Mandatory Overtime Restrictions for Health Care Facilities specifically detail the conditions under which healthcare facilities can require employees to work overtime. The law, which covers hourly workers who are involved in direct patient care activities or clinical services, including registered nurses, states:
Enacted in 2002, the statute became effective in January 2003 for acute-care hospitals and in July 2003 for long-term care and other facilities. Regulations implementing the law were adopted in February 2004. The New Jersey Division of Wage and Hour Compliance in the New Jersey Department of Labor and Workforce Development is responsible for enforcing it.
There are some situations in which mandatory overtime is allowed, such as in response to an unforeseeable emergency – which is strictly defined as an unpredictable and non-recurring event that requires immediate action. Even then, it can be used only as a last resort.
First, the employer must exhaust all reasonable efforts to obtain staffing, including requesting volunteers, contacting “on-call” employees, asking per-diem staff, and seeking agency personnel. These efforts must be documented for the state-agency review. Then, if mandatory overtime becomes necessary, the employer must provide the employee with up to an hour to take care of any personal matters, such as child care.
If Shore Memorial is found to be in violation of the law, it will be subject to monetary penalties. “And the sure way to get them to follow the law is to hit them in the pocketbook,” said one RN.
The complaint form (Form MW-31OT) is available at www.nj.gov/labor. Click on “Wage & Hour,” and then click on “Forms & Publications for workers & employers.” RNs can also contact the New Jersey Division of Wage and Hour Compliance at (609) 292-2305.