Staffing Regulation

Mandatory Overtime:

Not an Answer to Your Staffing Problems                                              

Signed into law on December 18, 2008 and effective July 1, 2009, the Prohibition of Excessive Overtime in Health Care Act limits the circumstances under which a PA health care facility can mandate overtime to only two – unforeseeable emergent circumstances and completion of a patient procedure already in progress.   This new law is applicable to all health care facilities: general and special hospitals, rehabilitation hospitals, hospice, ambulatory surgical facilities, long term care nursing facilities, inpatient drug and alcohol treatment facilities and cancer treatment centers. 

The American Nurses Association’s position is now and has always been that “Mandatory overtime is one of the many workplace issues that may be contributing to nurses leaving the workforce. Concern for the long term effects of overtime leading to fatigue includes potential for diminished quality of care, errors or near misses, as well as the negative impact on the care-givers health.”  But with unemployment rates exceeding 10% in some states and health care being designated a growth industry in this economy, health care facilities are stilling finding it difficult to staff nursing positions due to high turnover rates, poor performance and lack of qualified candidates.    As a result, overtime is soaring as patient care needs continue to be met for the population that is aging now at the highest growth rate ever.  

Overtime can be an answer to your problems but only if used appropriately and in accordance with the Act.  In addition to emergent circumstances (defined as an act of terrorism, a natural disaster or widespread disease outbreak), the law allows mandatory overtime for unexpected absences, discovered at or before the start of a scheduled shift, which could not be prudently planned for by an employer, and which would significantly affect patient safety.   Mandatory overtime can be used in these circumstances but it needs to be the option of last resort.   The health care facility must attempt to fill the vacancy with regular hours, per diem and agency before resorting to mandatory overtime hours.   They must exhaust all reasonable efforts to obtain staff in any other way possible. 

The law also allows overtime by agreement between the facility and the staff.   An employee may “accept” work in excess of their originally agreed upon number of hours.   And although an employee who works a consecutive 12 hours shift is entitled by law to 10 hours of off duty time, they may also waive the requirements voluntarily.  

The Act does not define “mandatory” but hospitals should be cautious when implementing “voluntary” overtime sign- up sheets or other methods of identifying staff to cover call offs and vacations which may be perceived by employees as being a mandatory condition of their employment.   

REGULATORY UPDATE

Recent Changes in Social Security

Some information was recently released by the U.S. Social Security Administration which may have gone unnoticed at your organization.   To help keep you and your staff up to date on those changes that may affect your operations, some key points are listed below. 

·         Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

·         A 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

·         For some beneficiaries, their Social Security increase may be partially or completely offset by increases in Medicare premiums.

·         In January 2012, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $110,100 from $106,800.

·         Of the estimated 161 million workers who will pay Social Security taxes in 2012, about 10 million will pay higher taxes as a result of the increase in the taxable maximum.

·         A new way for members of the public to participate in open and transparent government invites people to provide direct feedback on rules and regulations by emailing RegsReview@ssa.gov.

Stay up to date on press releases and news from the Social Security Administration at www.ssa.gov.

Social Media Update - Comments Legally Protected as Concerted Activity

Social Media Update – Comments Legally Protected as Concerted Activity           The U.S. Chamber of Commerce released a survey recently indicating that the National Labor Relations Board has reviewed more than 129 cases involving social media in some way.  As a result of these cases there have been 7 settlements, 2 Board decisions and 10 memoranda issued by the General Counsel.   A significant percentage of these cases involved non-union employers with no union activity.   The most common issue – overbroad employer policies restricting an employee’s use of social media.  NLRB General Counsel in a memorandum dated 5/5/2010 recalled that the Board has held that “an employer’s discipline of an employee based on a website statement relating to terms and conditions of employment is unlawful.”  These communications referred to as “other concerted activity” are protected under Section 7 of the National Labor Relations Act in addition to rights of employees to self-organize, to form, join, or assist labor organizations, and to bargain collectively through representatives of their own choosing.  Concerted activity, to be protected, must be for the purpose of collective bargaining or for “other mutual aid or protection”.  Though not defined by the Act, the NLRB has found concerted activity to include statements made by an employee when acting with the authority of other employees seeking to initiate, induce or prepare for group action or to bring group complaints to the attention of management.  Specific cases have found concerted activity present where employees complained of terms and conditions of employment including: wages, corrective actions, discharges, employer investigations, pay practices and working conditions.  These complaints came in the form of emails, posts and blogs.  Since the application of the Act to social media policies is a major developing area and NLRB decisions are specific to the underlying facts, only time will tell where the line will be drawn between protected activity and mere griping.