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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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