Breaking -- Mandatory Overtime Penalties Introduced in Albany

Assemblywoman Aileen Gunther and Senator Robert Jackson introduced the bill A3706/S5424 to their legislative chambers.

This is legislation that creates a civil penalty/fine for violation of the mandatory overtime law (including breaks and lunches). It allows imposition of a civil fine for violations of $1000-$10,000 for each infraction. The employee who was mandated would receive an additional 15% of the “overtime payment” as bonus pay.

Obviously, having real penalties for the existing law which prohibits mandatory overtime would make a huge difference for nurses and caregivers. Here is our official statement in support of the bill:

The New York State Nurses Association (NYSNA) representing 42,000 registered nurses and healthcare professionals strongly supports A3706 (Gunther)/S5424 (Jackson). This legislation allows for the imposition of a civil fine for violations of $1000-$10,000 for each infraction. The employee who is mandated would receive an additional 15% of the “overtime payment” as bonus pay.

This legislation is sorely needed to guarantee patient’s are cared for by nurses who have received their constitutionally protected breaks. This bill, along with others, is one preventive measure to stop nurse burnout. This bill creates accountability for employers who willingly break the law and put patients in harms way. This happens when employers knowingly do not provide adequate staffing that guarantees breaks and lunches for nurses and other caregivers are covered. The latest Leapfrog study gave New York hospitals their worst patient safety scores ever and the state must act to correct these conditions through this legislation and other measures. Patients and nurses deserve no less!

A3706/S5424 would provide a mechanism for a civil penalty where an employer violated the law, as well as provides the employee with an additional 15% of overtime payment for each violation as damages. With passage of this legislation, New York State is sending a clear message; when employers willingly break the law, they will be held accountable. NYSNA STRONGLY SUPPORTS A3706/S5424.

We applaud Assemblywoman Gunther and Senator Jackson for introducing this legislation.

Also, our bill the Safe Staffing and Quality Care Act (Gunther) is moving in the NYS Assembly and is on the Codes calendar today. Once it passes, it will go to Assembly Ways and Means Committee.

In the meantime, we need you to make the following calls to move these bills forward:

1. Pass Safe Staffing -- Call 844-82-NYSNA

2. Financial Penalties for Violating Mandatory Overtime Laws -- Assemblyman Marcos Crespo, Assembly Labor Committe Chair 518-455-5514 and Jessica Ramos, Senate Labor Committe Chair 518-455-2519. Tell them both to pass this bill!

The full text of the bill is listed below:

AN ACT to amend the labor law, in relation to the restrictions on consecutive hours of work for nurses.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

1 Section 1. Section 167 of the labor law, as added by chapter 493 of

2 the laws of 2008, is amended to read as follows:

3 § 167. Restrictions on consecutive hours of work for nurses. 1. When

4 used in this section:

5 a. "Health care employer" shall mean any individual, partnership,

6 association, corporation, limited liability company or any person or

7 group of persons acting directly or indirectly on behalf of or in the

8 interest of the employer, which provides health care services (i) in a

9 facility licensed or operated pursuant to article twenty-eight of the

10 public health law, including any facility operated by the state, a poli-

11 tical subdivision or a public corporation as defined by section sixty-

12 six of the general construction law, or (ii) in a facility operated by

13 the state, a political subdivision or a public corporation as defined by

14 section sixty-six of the general construction law, operated or licensed

15 pursuant to the mental hygiene law, the education law, the social

16 services law or the correction law.

17 b. "Nurse" shall mean a registered professional nurse or a licensed

18 practical nurse as defined by article one hundred thirty-nine of the

19 education law who provides direct patient care.

20 c. "Regularly scheduled work hours", including pre-scheduled on-call

21 time and the time spent for the purpose of communicating shift reports

22 regarding patient status necessary to ensure patient safety, shall mean

23 those hours a nurse has agreed to work and is normally scheduled to work

24 pursuant to the budgeted hours allocated to the nurse's position by the

25 health care employer; and if no such allocation system exists, some

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD01634-01-9 A. 3706

2

1 other measure generally used by the health care employer to determine

2 when an employee is minimally supposed to work, consistent with the

3 collective bargaining agreement, if any. Nothing in this section shall

4 be construed to permit an employer to use on-call time as a substitute

5 for mandatory overtime.

6 2. a. Notwithstanding any other provision of law no health care

7 employer shall require a nurse to work more than that nurse's regularly

8 scheduled work hours, except pursuant to subdivision three of this

9 section.

10 b. Nothing in this section shall prohibit a nurse from voluntarily

11 working overtime.

12 3. The limitations provided for in this section shall not apply in the

13 case of:

14 a. a health care disaster, such as a natural or other type of disaster

15 that increases the need for health care personnel, unexpectedly affect-

16 ing the county in which the nurse is employed or in a contiguous county;

17 or

18 b. a federal, state or county declaration of emergency in effect in

19 the county in which the nurse is employed or in a contiguous county; or

20 c. where a health care employer determines there is an emergency,

21 necessary to provide safe patient care, in which case the health care

22 provider shall, before requiring an on-duty employee to remain, make a

23 good faith effort to have overtime covered on a voluntary basis, includ-

24 ing, but not limited to, calling per diems, agency nurses, assigning

25 floats, or requesting an additional day of work from off-duty employees,

26 to the extent such staffing options exist. For the purposes of this

27 paragraph, "emergency", including an unanticipated staffing emergency,

28 is defined as an unforeseen event that could not be prudently planned

29 for by an employer and does not regularly occur; or

30 d. an ongoing medical or surgical procedure in which the nurse is

31 actively engaged and whose continued presence through the completion of

32 the procedure is needed to ensure the health and safety of the patient.

33 4. The provisions of this section are intended as a remedial measure

34 to protect the public health and the quality of patient care, and shall

35 not be construed to diminish or waive any rights of any nurse pursuant

36 to any other law, regulation, or collective bargaining agreement.

37 5. If, after investigation, the commissioner determines that an

38 employer has violated this section, the commissioner shall issue to the

39 employer an order directing compliance therewith, which shall describe

40 particularly the alleged violation. A copy of such order shall be

41 provided to any employee who has filed a complaint and to his or her

42 authorized representative. The commissioner shall assess the employer a

43 civil penalty of not less than one thousand nor more than ten thousand

44 dollars, per violation. The employee shall receive an additional fifteen

45 percent of the overtime payment from the employer for each violation as

46 damages.

47 § 2. This act shall take effect on the sixtieth day after it shall

48 have become a law.