Department of Labor Prohibition Against Mandatory Overtime for Nurses Goes into Effect

On June 28, 2023, the New York State Department of Labor (NYS DOL) announced it has strengthened enforcement to the state’s mandatory overtime protection law, which bars hospitals and other medical facilities from forcing nurses to work overtime, except during limited emergency situations. This victory comes after a culmination of NYSNA’s advocacy alongside the NYS AFL-CIO’s Nurse Issues Committee and our 2021 staffing law victory.

Nurses know that forced overtime contributes to fatigue, burnout and the potential for medical errors. We have been fighting against the abuse of mandatory overtime, especially as employers who fail to staff safely continue to use it.

The law now requires employers to notify NYS DOL when exceptions to limitations on mandatory overtime are in use, and it strengthens enforcement with penalties for employers who abuse mandatory overtime.

All instances of mandatory overtime must now be reported to New York State Department of Labor (DOL), even if an exception, such as a declaration of emergency, is applicable. NYSNA members can ensure that employers are reporting all instances of mandatory overtime to DOL and that employers make a good faith effort to cover overtime on a volunteer basis.

Know Your Rights

Basics

• The amended mandatory overtime law (New York Labor Law § 167) went into effect on June 28, 2023. All instances of mandatory overtime must now be reported to New York State Department of Labor (DOL)by the employer, even if an exception, such as a declaration of emergency, is applicable.
• Employers are allowed to use mandatory overtime in these exceptions:
• During a healthcare disaster that increases the need for healthcare personnel,
• During a federal, state, or county declaration of emergency,
• During an unforeseen emergency that could not be planned for and does not regularly occur, or
• During an ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence is needed to ensure the health and safety of the patient.

Reporting requirements

• For at least 15 instances in a month, employers must report to both DOL and Department of Health (DOH) the number of days mandatory overtime was required, the number of employees required to work mandatory overtime, as well as the dates and times that mandatory overtime is required.

• For at least 45 instances in a three-month period, employers must report to DOL and DOH why mandatory overtime was required and estimate when they intend to stop the use of mandatory overtime.

• Employers are also now required to make a good faith effort to have overtime covered on a voluntary basis before resorting to using mandatory overtime.

• This includes calling per diems, agency nurses, assigning floats, or requesting an additional day of work from off-duty employees.

• This requirement applies regardless of whether there is an applicable exception, such as a declaration of emergency or an ongoing procedure.

Enforcement

• New penalties are in effect:
• Up to $1,000 for a first violation, up to $2,000 for a second violation within 12 months, and up to $3,000 for a third or subsequent violation within 12 months.
• Up to $500 for failure to notify the DOL when employers rely on an exception such as a declaration of emergency.
• Jeanette Lazelle, Deputy Commissioner for Worker Protection, is the appointed enforcement officer to oversee investigation of complaints.
• Employers are required to display a poster with information for employees on how to file a complaint under this law. This poster must be placed in an easily seen and accessible place in the workspace. If you cannot find it or it has not been posted, contact your representative. A copy of the poster is attached below for reference.

How to File a Complaint

• Nurses should file complaints to DOL and contact their NYSNA representative if they are mandated to work overtime.
• Complaints may be filed by individual nurses, a group of nurses, or the NYSNA rep. at a facility.
• The complaint form is located on the Department of Labor’s website at https://bit.ly/motcomplaint
• Complete the form and submit it via email to labor. sm.lsclaim.intake@labor.ny.gov, Jeanette.Lazelle@ labor.ny.gov, Claire.tuck@nysna.org, and your NYSNA rep.

Related Materials

Learn more or file a complaint at the NYS DOL website.

Read our Know Your Rights flyer to find out about reporting requirements for employers, new penalties employers face when they fail to follow the law and how to file a complaint if your employer mandates you to work overtime unlawfully.