January 13, 2023 — At the urging of PEF President Wayne Spence, Governor Kathy Hochul signed into law a measure to increase transparency and accountability for certain health care employers, including state agencies, who continue to rely on mandatory overtime to meet their nurse staffing needs. (S.850 by Senator Jackson/A.970 by Assemblymember Gunther)
PEF successfully lobbied for the inclusion of PEF nurses at the NYS Office of Children and Family Services for coverage under this law. PEF nurses at OCFS have been excluded from protections against mandatory overtime since the original law was first enacted in 2008.
Additionally, employers are now required to make a “good faith” effort to have overtime covered on a voluntary basis before mandating overtime. A “good faith” effort includes the use of per diems, agency nurses, assigning floats, or requesting an additional day of work from an off-duty employee. Failure to make such “good faith” effort constitutes a violation of the law.
After such “good faith” effort is made, employers who use mandatory overtime are required to notify the Department of Labor (DOL) that they are mandating overtime for their nurses. Employers who use mandatory overtime for 15 days or more in a month must file a report with DOL outlining: (1) the number of days mandatory overtime was required, (2) the number of employees required to work overtime, and (3) the times and dates overtime was utilized.
If the employer utilizes mandatory overtime for any 45 days over a consecutive three-month period, the employer must file a written report detailing the reason for such overtime and when such employer plans on ending the use of such overtime.
A special enforcement officer shall be established in the DOL to oversee investigations into potential violations of the overtime law. Any employee required to work mandatory overtime in violation of the law may file a complaint with the enforcement officer at the DOL for possible investigation.
If an employer is found in violation of this law, the commissioner shall issue an order directing the employer to comply. The commissioner may also institute a fine of up to $1,000 for the first violation; $2,000 for a second violation if within a 12-month period; or $3,000 for a third or subsequent violation within a 12-month period.
The law takes effect 180 days after enactment, but employers are required to make a “good faith” effort to have overtime covered voluntarily on the 90th day after enactment.
PEF thanks State Senator Robert Jackson, Assemblymember Aileen Gunther and Governor Kathy Hochul for delivering these important additional protections for our nurses. And a special note of thanks to the PEF Statewide Nurses Committee and the thousands of PEF members who lobbied their legislators and the governor to get this bill signed into law.
Working together, PEF did it!