New Washington State Prohibition on Mandatory Overtime for Nurses

By Paula L. Lehmann and Henry E. Farber
[May 2002]

Recent reports linking mandatory overtime to stress and fatigue-related problems in the workplace have spurred a national trend toward statutory restriction of mandatory overtime in selected industries, particularly those involving public health and safety. Washington State's new prohibition on mandatory overtime for nurses is a recent example of this emerging trend as it has been applied to the health care industry.

On March 22, 2002, Washington's Governor Gary Locke signed a new law restricting mandatory overtime for nurses. The new legislation, to take effect on June 13, 2002, was passed overwhelmingly by both the Senate (40:9) and the House (82:14) in response to the state's chronic nurse shortage. The preamble to the law affirms that its purpose is to protect health care workers and promote patient safety by establishing reasonable safeguards limiting certain health care facilities' use of mandatory overtime as a solution to nurse shortages. As initially proposed, the bill would have applied to a broad variety of hospital workers. Ultimately the statute was limited to registered nurses and licensed professional nurses.

With certain exceptions, the new law will amend RCW Chapter 49.28 to prohibit health care facilities from requiring nurses to work involuntary mandatory overtime. Highlights of the new legislation include the following:

• Covered employees are defined as hourly registered nurses and licensed professional nurses involved in direct patient care activities or clinical services.
• Overtime is defined as "hours worked in excess of an agreed upon predetermined, regularly scheduled shift within a 24-hour period not to exceed 12 hours in a 24-hour period or 80 hours in a consecutive 14-day period." Prescheduled "on-call-time" is excluded.
• Covered health care facilities are limited to facilities (or any part of a facility) operating on a 24/7 schedule, including a nursing home or home health agency operating under a hospital's licensure.

Limited exceptions are recognized:

• Unforeseeable emergent circumstances (e.g. national emergency, health disaster or catastrophe);
• Procedure in progress and nurse's absence would have an adverse effect on the patient; and
• The exhaustion of reasonable efforts to obtain staffing (health care facility has, to the extent reasonably possible, sought volunteers, contacted nurses who have placed themselves on a list of nurses willing to work extra hours, and sought per diem staff and temporary agency nurses if they are regularly used).

Unionized employers may certainly argue that the new law is preempted by the National Labor Relations Act, if a collective bargaining agreement authorizes such overtime. However, the courts have usually said that protective legislation, such as the minimum wage and overtime statutes, are not preempted. This issue may be tested in court. Until it is resolved, the conservative approach would be to avoid requiring overtime without the nurse's agreement. Those facilities currently in collective bargaining will want to consider whether to seek an express waiver of the statutory provisions.

The Department of Labor and Industries is charged with enforcing the new legislation. Employers are subject to civil penalties of $1,000 for initial infractions, and penalties escalating to $5,000 for each infraction after the first four. Aggrieved unionized employees may also file a grievance. Finally, violations could also give rise to claims of retaliation or wrongful termination in breach of public policy.

Comment

This new Washington state legislation could significantly impact a covered health care facility's personnel policies and collective bargaining agreements. Employers should evaluate existing contract language or policies that address the right to require overtime, including provisions that require work in advance of shifts or stand-by hours. Careful consideration should also be made as to how this new law could interrelate with missed breaks or meal periods, especially for nurses scheduled for 12-hour shifts. On the other hand, some agreements or policies may include language related to innovative work schedules and/or incentive shifts that may provide flexibility to meet scheduling needs in light of the new legislation. Employers with collective bargaining agreements should also review their obligation to negotiate when a portion of the collective bargaining agreement becomes invalid. Employers may wish to consult with employment counsel for a thorough analysis of their specific policies or existing contracts that may be affected by the new law.

Employers should also be aware that this area of law is rapidly evolving. A number of states have enacted or proposed legislation addressing overtime restrictions that may vary from the Washington state law. Federal legislation also has been proposed that would impose mandatory overtime restrictions for nurses on hospitals and other service providers that receive payments under the federal Medicare program. As a result, all employers, particularly those with facilities in multiple states, should continue to closely monitor this issue.

Any questions about this Advisory should be directed to :

Henry Farber, Bellevue, (425) 646-6138, henryfarber@dwt.com
Paula Lehmann, Bellevue, (425) 646-6186, paulalehmann@dwt.com

This Employment Law Advisory is a publication of the Employment Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Copyright © 2002, Davis Wright Tremaine LLP.

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