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Mandatory Overtime and Its Impact on Nurses and CNAs

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Mandatory overtime, also known as forced overtime, happens when employees, including nurses and CNAs, are forced to work more hours than they had contracted to work upon hire (which is usually 40 hours per week).

Forced overtime is imposed. Nurses, CNAs, and other employees cannot opt out of mandatory overtime—hence its name. While some nurses and CNAs likely welcome these additional hours and the overtime pay that comes with it, others nurses and CNAs do not—they are often faced with the choice to work the overtime hours or lose their jobs. And, yes, this is still legal, though some states have established restrictions.

Under federal law, employers may require their employees to work overtime. Furthermore, federal law places no restrictions on the number of overtime hours that an employer can require. Some states have, but most have not.

The Fair Labor Standards Act (FLSA) does compel employers who require such overtime work pay the affected employee(s) time and a half for non-exempt positions. This equates to an employee’s regular wages plus an additional 50 percent of that amount.

FLSA’s additional pay requirement, however, may not apply to you, because federal law allows for exemptions. Exempt professions and professionals include, but are not limited to:

  • Public officials
  • Seamen
  • Forest protection
  • Fire prevention
  • Farm/ranch employees
  • Executive, administrative, and professional salaried employees
  • Seasonal employees at agricultural fairs (such as state fair employees)
  • Newspaper vendors/carriers
  • Occasional labor for private residences (for example, babysitters)
  • Anyone who must sleep at their place of employment
  • Youth camps that offer child care
  • Volunteers for for-profit/not-for-profit organizations

As is obvious, employees need to learn whether they are exempt or non-exempt concerning overtime pay.

Whether surprising, unsettling, or both, often no mandatory maximums exist for the number of overtime hours that an employer can require. For nurses and CNAs, Congress has introduced but not yet passed into law some federal restrictions.

And, yes, your employer can fire you if you refuse to work mandatory overtime. Some states have established laws that place parameters around this power that employers can wield. Currently, 18 states have enacted legislation or regulations prohibiting or restricting mandatory overtime for a nurse, which leaves 32 that have not. Even when they are established, the restrictions have been minimal. For example:

  • Minnesota law disallows any retaliatory action against a nurse who refuses mandatory overtime—presumably; nurses cannot lose their positions for working overtime. But even in the event that the nurse is not fired, the environment for those who refuse overtime may become hostile and promotion opportunities could feel limited—which have damaging effects of their own. Nonetheless, this law is better than no law.
  • New Jersey law places limits on the amount of overtime work that a healthcare facility can require of nurses and CNAs.
  • Texas law does not prohibit mandatory overtime, but it does require hospitals to develop policy and procedures for mandatory overtime. In this way, at least nurses and CNAs have an understanding of the overtime that their employers may require of them in the future, without feeling thrust into it deprived of warning and preparation—as can often happen with forced overtime in other states.

Despite the overwhelming legality of mandatory overtime, there are still more things that you should know.

What Is Overtime? How Does Your Employment Contract Define the Term?

The term overtime is often a subject of debate. Often, employers will equivocate and unsteady the term, which allows them to demand more hours of their nurses, CNAs, and other employees while paying less overtime pay and without the fear of losing successful lawsuits.

According to an insightful article written by Cathleen Wheatley, the chief nurse executive and vice president of clinical operations at Wake Forest Baptist Health, the term overtime

was poorly defined and indiscriminately used. Definitions included mandatory, voluntary, coerced, and extended work hours; working an off day; having on-call hours; having unpaid versus paid overtime; and varied quantifications of hours per week and hours per extended shift.

Be sure to understand, early on, how your employment contract—if you have one—defines overtime. If it does not define this term, ask the appropriate people—such as union representatives or human resources personnel—for more information regarding overtime definitions and requirements.

Should the Law Limit Overtime for Nurses and Other Healthcare Workers?

Mandatory overtime may expose healthcare workers and patients to a variety of dangers created by physical and mental fatigue, but it remains an aspect of the profession for about 67 percent of nurses.

Hospitals and clinics often scramble to meet staffing requirements. To remain compliant with those regulations, they rely on nurses (RNs) and nursing assistants (CNAs) to work overtime.

The prevalence of mandatory overtime has prompted organizations like the American Nurses Association (ANA) and American Association of Critical-Care Nurses (AACN) to advocate on behalf of nurses.

Hospital workers suffer overexertion injuries at twice the average for U.S. workers, and excessive work hours are partially responsible. Patients are at risk, too, as a study published in Health Affairs found that a nurse’s error rate goes up threefold during a shift that lasts longer than 12.5 hours.

What Dangers Are Created by Mandatory Overtime in Healthcare?

The following table lists some of the ways that mandatory overtime can hurt nurses and patients:

Ways Mandatory Overtime May Hurt Nurses

    • Overexertion injuries
    • Physical and mental fatigue
    • Increased job stress
    • Increased risk of mistakes that may lead to discipline or license revocation
    • Job burnout and dissatisfaction

Ways Mandatory Overtime for Workers May Harm Patients

    • Increased risk of medication errors causing injury or death
    • Decreased quality of care and patient satisfaction
    • Decreased efficiency in care (longer hospitalizations and wait time)
    • Increased hospital/clinic worker turnover may impact patient experience

With the well-documented dangers of overworked nurses, why don’t more healthcare facilities change their practices? Well, each situation is unique, but forcing overtime on experienced and trusted nurses is often more cost-effective than hiring and training new ones. Furthermore, nursing shortages and unpredictable staffing needs sometimes leave healthcare employers with few options.

Although the need for more nurses is increasing far more rapidly than the number of people entering the profession, creating widespread staffing challenges, many nursing advocates argue that hospitals and other healthcare facilities should use mandatory overtime as a short-term solution. Despite this, healthcare facilities tend to rely on mandatory overtime to redress staffing shortages way too often and for way too long.

Do You Believe Federal Law Should Restrict Mandatory Overtime?

Mandatory overtime is not an occasional thing. Hospitals and clinics across the country regularly use it. Cathleen Wheatley, as mentioned earlier in this blog, also described the sheer prevalence of nurse overtime in her scholarly article. She wrote,

Bae (2012) found 60% of U.S. nurses surveyed worked at least one type of overtime, with only 10% reporting unpaid overtime. Of nurses who reported working overtime, 54% worked less than 12 hours a week of overtime and 46% worked 12 hours or more per week. For those working less than 12 hours, 62% reported voluntary overtime, 18% mandatory, and 37% on call. For those working 12 hours or more per week of overtime, 35% reported mandatory and 72% on call. Of the total sample, approximately 17% reported working more than 40 hours per week as the norm.

What State Laws Apply?

Some states have started the ball rolling. They have begun to think and talk about successful reforms—but the problems associated with mandatory nurse overtime require nationwide action. Meanwhile, the following state requirements can provide useful entry points for those states that are considering passing overtime laws.

California

Restricts overtime to no longer than 12 hours in a 24-hour except in a health care emergency (2000)

Maryland

Restricts overtime to no more than the regularly scheduled hours except an emergency situation (2002)

Maine

Allows refusal to work more than 12 hours, except in certain circumstances, and 10 hours off after overtime (2001)

Minnesota

Prohibits mandatory overtime (2002). Minnesota’s legislation lists 12 consecutive hours or less as a “normal work period” for nurses that they may not exceed absent emergency.

New Jersey

Prohibits mandatory work in excess of predetermined scheduled work shift, not to exceed 40 hours per week (2002)

Oregon

Prohibits more than 48 hours in a week or more than 12 hours in 24 hours (2001)

Texas

Requires hospitals to develop policies and procedures for mandatory overtime (2002)

Washington

Allows overtime only on a strictly voluntary basis (2002)

Connecticut

Prohibits mandatory work in excess of a predetermined schedule except in a surgical procedure or public health emergency (2004)

Illinois

Allows mandatory overtime only in unforeseen emergent circumstances, and eight-hour rest periods for nurses working 12-hour shifts (2005)

West Virginia

Prohibits mandatory overtime and provides a penalty for any violations (2004). This prevents nurses from working more than 16 hours in a 24-hour period. It also requires eight consecutive hours off after a shift of 12 hours or more before the nurse can lawfully return to work.

 

California Restricts overtime to no longer than 12 hours in a 24-hour except in a health care emergency (2000)
Maryland Restricts overtime to no more than the regularly scheduled hours except an emergency situation (2002)
Maine Allows refusal to work more than 12 hours, except in certain circumstances, and 10 hours off after overtime (2001)
Minnesota Prohibits mandatory overtime (2002). Minnesota’s legislation lists 12 consecutive hours or less as a “normal work period” for nurses that they may not exceed absent emergency.
New Jersey Prohibits mandatory work in excess of predetermined scheduled work shift, not to exceed 40 hours per week (2002)
Oregon Prohibits more than 48 hours in a week or more than 12 hours in 24 hours (2001)
Texas Requires hospitals to develop policies and procedures for mandatory overtime (2002)
Washington Allows overtime only on a strictly voluntary basis (2002)
Connecticut Prohibits mandatory work in excess of a predetermined schedule except in a surgical procedure or public health emergency (2004)
Illinois Allows mandatory overtime only in unforeseen emergent circumstances, and eight-hour rest periods for nurses working 12-hour shifts (2005)
West Virginia Prohibits mandatory overtime and provides a penalty for any violations (2004). This prevents nurses from working more than 16 hours in a 24-hour period. It also requires eight consecutive hours off after a shift of 12 hours or more before the nurse can lawfully return to work

Furthermore, Pennsylvania’s Prohibition of Excessive Overtime in Health Care Act allows the employee and employer to agree to a predetermined number of hours that they generally may not exceed except in emergencies or catastrophic events. New York has a similar law.

Which State’s Approach, if Any, Do You Prefer? Where Should We Draw the Line?

That is, of course, a question best answered individually. States have the right to come up with answers tailored to the needs of their residents. But they should do something, and we look forward to a time where all states place overtime restrictions for nurses and other healthcare professionals.

The experienced, compassionate lawyers and ERISA attorneys at DarrasLaw—top-rated disability law firm in the country—has helped hundreds of nurses, CNAs, and other healthcare professionals collect on valid disability insurance claims. We offer free individual or group disability insurance policy analysis and free claim consultations. Call us today at (800) 458-4577 or contact us online.

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