Governor Signs Mandatory Overtime Bill!
The year 2002 started off with a bang for New Jersey health care workers when
acting Governor Donald Di Francesco signed the bill that bans mandatory
overtime. The bill, which was signed on January 2nd, 2002, is the strongest in
the country, and the first to specifically ban all forced overtime, except in
emergencies.
“This is a great victory for New Jersey’s health care workers!”, stated
HPAE President Ann Twomey. “It provides real protection for nurses and other
health care employees against the abuses that they have suffered over the past
years. And it would not have happened without the efforts of the hundreds of
HPAE members who worked to get it passed.”
The bill bans the use of forced overtime in hospitals and nursing homes, except
in “unforeseable emergent circumstances”, defined as “an unpredictable or
unavoidable occurrence at unscheduled intervals relating to health care delivery
that requires immediate action.”
Passage of the bill took two years, with HPAE and other unions and organizations
working steadily for its passage. The bill becomes law one year from the date it
was signed, a compromise that helped to remove the initial opposition the bill
faced from the New Jersey Hospital Association.
“This is a significant step towards re-establishing higher standards for our
patients, and better working conditions for caregivers,” said HPAE Vice
President Bernie Gerard. “It won’t solve all the problems health care
workers face today, but it’s a very strong start.”
See bill below
[Corrected
Copy] [Second Reprint] SENATE, No. 2093
STATE
OF NEW JERSEY
209th
LEGISLATURE
INTRODUCED
FEBRUARY 8, 2001
Sponsored
by:
Senator JOSEPH F. VITALE
District 19 (Middlesex)
Senator JOHN O. BENNETT
District 12 (Monmouth)
Co-Sponsored by:
Senators Adler, Furnari, Cafiero, Turner, Girgenti, Assemblymen Collins, Conners,
Kelly, Corodemus and Assemblywoman Greenstein
SYNOPSIS
Prohibits health care facilities from requiring
certain hourly wage employees to perform overtime work.
CURRENT VERSION OF TEXT
As reported by the Senate Budget and
Appropriations Committee on June 25, 2001, with amendments.
(Sponsorship Updated As Of: 12/11/2001)
BE
IT ENACTED by the Senate and General Assembly of the State of New Jersey:
1. It is declared to be the public policy of this
State to establish a maximum 1[work day and]1
work week for certain hourly wage health care facility employees, beyond which
the employees cannot be required to perform overtime work, in order to safeguard
their health, efficiency, and general well-being as well as the health and
general well-being of the persons to whom these employees provide services.
2. As used in this act:
"Employee" means an individual employed
by a health care facility who is involved in direct patient care activities or
clinical services and who receives an hourly wage1, but
shall not include a physician1.
"Employer" means an individual,
partnership, association, corporation or person or group of persons acting
directly or indirectly in the interest of a health care facility.
"Health care facility" means a health
care facility licensed by the Department of Health and Senior Services pursuant
to P.L.1971, c.136 (C.26:2H-1 et seq.)1, a State or county
psychiatric hospital, a State developmental center, or a health care service
firm registered by the Division of Consumer Affairs in the Department of Law and
Public Safety pursuant to P.L.1960, c.39 (C.56:8-1 et seq.)1.
2"On-call time"
means time spent by an employee who is not currently working on the premises of
the place of employment, but who is compensated for availability, or as a
condition of employment has agreed to be available, to return to the premises of
the place of employment on short notice if the need arises.
"Reasonable efforts" means that the
employer shall: a. seek persons who volunteer to work extra time from all
available qualified staff who are working at the time of the unforeseeable
emergent circumstance; b. contact all qualified employees who have made
themselves available to work extra time; c. seek the use of per diem staff; and
d. seek personnel from a contracted temporary agency when such staff is
permitted by law or regulation.2
"Unforeseeable emergent circumstance"
means 1[an unpredictable or unavoidable occurrence at
unscheduled intervals relating to health care delivery that requires immediate
action] 2[any unforeseen declared national, State or
municipal emergency or a disaster or other catastrophic event which
substantially affects or increases the need for health care services1]
an unpredictable or unavoidable occurrence at unscheduled intervals relating
to health care delivery that requires immediate action2.
3. The requirement that an employee of a health
care facility accept work in excess of an agreed to, predetermined and regularly
scheduled daily work shift, not to exceed 40 hours per week, except in the case
of an unforeseeable emergent circumstance when the overtime is required only as
a last resort and is not used to fill vacancies resulting from chronic short
staffing 2and the employer has exhausted reasonable efforts
to obtain staffing2, is declared to be contrary to public
policy and any such requirement contained in any contract, agreement or
understanding executed 2or renewed2
after the effective date of this act shall be void.
4. a. Notwithstanding any provision of law to the
contrary, no health care facility shall require an employee to accept work in
excess of an agreed to, predetermined and regularly scheduled daily work shift,
not to exceed 40 hours per week.
b. The acceptance by any employee of such work in
excess of an agreed to, predetermined and regularly scheduled daily work shift,
not to exceed 40 hours per week, shall be strictly voluntary and the refusal of
any employee to accept such overtime work shall not be grounds for
discrimination, dismissal, discharge or any other penalty or employment decision
adverse to the employee.
c. The provisions of this section shall not apply
in the case of an unforeseeable emergent circumstance when2:
(1)2 the overtime is required only as a last resort and is
not used to fill vacancies resulting from chronic short staffing2,
and (2) the employer has exhausted reasonable efforts to obtain staffing2.
1In the event of such an unforeseeable emergent
circumstance, the employer shall provide the employee with necessary time, up to
a maximum of one hour, to arrange for the care of the employee's minor children
or elderly or disabled family members.1
2The requirement that the
employer shall exhaust reasonable efforts to obtain staffing shall not apply in
the event of any declared national, State or municipal emergency or a disaster
or other catastrophic event which substantially affects or increases the need
for health care services.
d. In the event that an employer requires an
employee to work overtime pursuant to subsection c. of this section, the
employer shall document in writing the reasonable efforts it has exhausted. The
documentation shall be made available for review by the Department of Health and
Senior Services and the Department of Labor.2
5. An employer who violates the provisions of this
act shall be subject to the sanctions provided by law for violations of the
"New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et
seq.).
16. a. The provisions of this
act shall not be construed to impair or negate any employer-employee collective
bargaining agreement or any other employer-employee contract in effect on the
effective date of this act.
b. The provisions of this act shall not apply to
employees of assisted living facilities licensed by the Department of Health and
Senior Services who are provided with room and board as a benefit of their
employment and reside in the facility on a full-time basis.1
2c. The provisions of this
act shall not apply to on-call time, but nothing in this act shall be construed
to permit an employer to use on-call time as a substitute for mandatory
overtime.2
17. The Departments of Health
and Senior Services, Human Services, and Law and Public Safety shall each
collect data from all health care facilities2[, except
general hospitals,]2 which the respective department
licenses, operates or regulates, as to the potential impact of the mandatory
overtime prohibition on employee availability and other considerations, and
shall jointly report their findings to the Senate and General Assembly Health
Committees within 18 months of the date of enactment of this act.1
18. The Commissioner of
Health and Senior Services, in consultation with the Attorney General and the
Commissioners of Human Services and Labor, shall adopt rules and regulations,
pursuant to the "Administrative Procedure Act," P.L.1968, c.410
(C.52:14B-1 et seq.), within six months of the date of enactment of this act, to
carry out the purposes of this act.1
1[6.] 9.1
This act shall take effect 1[immediately] 2[180
days] 12 months2 after the date of enactment in
the case of 2[a general] an acute care2
hospital and 18 months after the date of enactment in the case of 2long-term
care facilities and2 all other health care facilities1.
EXPLANATION - Matter enclosed in bold-faced
brackets [thus] in the above bill is not enacted and intended to be omitted in
the law.
Matter underlined thus is new matter.
Matter enclosed in superscript numerals has been
adopted as follows:
1 Senate SHH committee
amendments adopted March 15, 2001.
2 Senate SBA committee
amendments adopted June 25, 2001.