NEW YORK NURSE: October 2010
by Mark Genovese
New York State’s law that bans mandatory overtime had been in effect for only eight months when it faced its first challenge. The site was Claxton-Hepburn Medical Center in Ogdensburg.
Mandated for the second time in three months, emergency department nurse and NYSNA LBU President Roderic Roca decided it was enough. “Both times, there had been vacancies on upcoming shifts because of sick calls,” Roca said. “Although our contract allows for management to mandate a nurse for up to four hours in an emergency, it was evident that hospital management was abusing it.”
New York State’s mandatory overtime ban was developed by NYSNA, signed into law by Governor Paterson in August 2008, and took effect in July 2009. The law prohibits employers from requiring nurses to work beyond their “regularly scheduled work hours.”
The law affirms that RNs or LPNs who refuse to be mandated cannot be charged with patient abandonment or neglect on that basis alone. It allows for two exceptions – when a healthcare disaster or a declared emergency increases the need for nurses, or when the hospital cannot find anyone to fill the shift and declares a “patient care emergency.”
Each healthcare facility must develop a plan as part of a good-faith effort to cover overtime on a voluntary basis. Roca said that initially after the law went into effect, Claxton-Hepburn management did a good job in finding volunteers for necessary overtime, even arranging for RNs to swap shifts. Nor did it violate the RNs’ NYSNA contract provision that there will be no mandatory overtime for holes in the schedule.
But then, other RNs began reporting increasing incidences of mandation under questionable circumstances.
NYSNA Nursing Representative Roger Bull decided to attack the problem on two fronts. First, he filed a grievance with hospital management to point out this was a violation of the nurses’ NYSNA contract. He also followed the procedures for filing a complaint with the New York State Department of Labor (DOL).
“The Department of Labor was very responsive,” Bull said. “An investigator called me right away, then she started following up by questioning hospital administration.”
The labor standards investigator looked into the case and found in favor of NYSNA. In a letter to Roca dated Aug. 3, 2010, the investigator said it found the hospital did not meet the requirements of the law “making the use of mandatory overtime illegal. As a result, the employer has been issued a Notice of Violation.”
The investigator also contacted hospital management offering recommendations on how to improve its planning and avoid putting RNs in this position again. “The process does work,” Bull said, “but you have to start building the documentation and then let the system do its intended work.”
To report violations of the state mandatory overtime ban, the Department of Labor has posted an online complaint form, along with answers to Frequently Asked Questions (FAQs), on its website: www.labor.state.ny.us. Each incident of mandatory overtime is reviewed on an individual basis. RNs should submit a complaint form for any incidents in which they’ve been mandated to work and the employer did not comply with the law.