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Legislative Efforts to Control Mandatory Overtime
As of March 2002, laws limiting mandatory overtime have been passed in five states: Maine, Minnesota, New Jersey, Oregon and Washington. Washington and New Jersey have the strongest protection, with a total ban on any overtime over scheduled shift, except in an emergency. Eighteen other states are considering enacting similar legislation.
Many legislators have identified the logical connection between mandatory overtime and the decision of many nurses to leave the practice of hospital nursing. "Why is there a nursing shortage?" one legislator asked. "Because when you put more pressure onto the nurses, they are going to exit because excess of overtime is not good for anybody."279 Legislators have also understood that management is taking advantage of the dedication of nurses to force them to work unsafe schedules. One Rhode Island senator noted, "Employers are banking on the fact that nurses will never walk away from their patients. I've known nurses who stay 24 hours because they've had no replacements."280
Faced with the insistence by some hospital administrators that limiting mandatory overtime would create an intolerable risk of patient abandonment, many legislators have pointed to the uncontroversial establishment of overtime limits for a host of other occupations. A Rhode Island representative noted, "It's ironic that ... bus and cab drivers can only work 12 hours in a 24-hour span, but we force health care employees to work as much as 16 hours a day. I'm no rocket scientist, but I can't believe that people can administer the same services in hour 15 as they did during hour six."281
Indeed, many other occupations, including some with less dramatic impacts on public health, have already adopted regulations governing work hours:282
- Pilots, under Federal Aviation Administration rules, cannot fly more than eight hours in any 24-hour period or more than 30 hours in one week.283
- Flight attendants are governed by FAA regulations that include a requirement for increased staffing on shifts of more than 16 hours and that specify minimum hours of rest after each overtime shift.
- Truck drivers are forbidden to drive more than 10 consecutive hours before taking an eight-hour break and cannot work more than 70 hours over any eight-day period. Rules proposed in 1999 would create a further limit of 12 hours of total driving within any 24-hour period.
- Railway workers cannot work a shift longer than 12 hours, and any 12-hour shift must be followed by at least 10 hours of rest.
The New York State Legislature, in introducing its own effort to curb mandatory overtime, provided a concise summary of the problems so many legislators have sought to address:
Nurses work in a demanding, stressful environment where proper decision making is a critical function of the job. Understaffing has resulted in nurses working longer hours caring for sicker, needier patients, and in greater need of suitable rest. Unfortunately, hospital administrators have begun to use unscheduled, mandatory overtime to make up for personnel shortages that would better be addressed through fair labor practices. Unscheduled, mandatory overtime is an unfair, additional burden placed on a workforce, primarily female, with their own family and child care responsibilities to address. ... This bill is intended to improve the health care environment for patients and the working environment for nurses and their families.284
However, there are potential pitfalls to legislating limits on mandatory overtime. Some union leaders worry that if states adopt restrictions on mandatory overtime without also enacting mandated staffing ratios, hospitals will respond by simply increasing the caseloads of RNs on the floor.285 In addition, mandatory overtime is difficult to regulate. Since many nurses and many nurse unions support the option of working 12-hour shifts, it may not make sense to adopt legislative bans on working more than eight hours in a shift. On the other hand, a ban that kicks in only after 40 hours in a given week leaves open the possibility for abuse of mandatory overtime in a single shift. That happened in Oregon after the state recently passed mandatory overtime legislation based on weekly overtime. The Oregon Nurses Association reports that in several cases since the new law was enacted, when part-time nurses have been asked to work overtime that exceeds eight hours in a day but does not add up to more than 40 hours in a week, supervisors have told nurses that if they agree to "volunteer" for the overtime, they will be paid at time and a half; however if they insist on the work being classified as "mandatory," the hospital will pay them straight-time wages.286
AFSCME, together with other nurse organizations, health care unions and the AFL-CIO,287 created a set of "principles" for federal legislation to ensure that the laws have a real impact. All health care facilities are included. Overtime is defined as any time exceeding a pre-determined shift (the pre-determined shift should never exceed 12 hours in a 24-hour period or 80 hours in a two-week period). On-call is included in the 80 hours. Every nurse has the right to refuse overtime work without fear of discrimination, dismissal, discharge or other penalty. No nurse would be precluded from volunteering to work overtime, provided she or he felt capable and able to provide continuous quality patient care. A declared state of emergency would allow the use of mandatory overtime only during the period of emergency. Violators would be fined, and repeated offenders could lose Medicare or Medicaid reimbursements.
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