|SAME AS||No Same As|
|Amd §167, Lab L|
|Relates to the restrictions on consecutive hours of work for nurses; includes facilities operated under the social services law in the definition of health care employer; adds penalties against employers.|
|06/12/2017||referred to labor|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8354 SPONSOR: Abbate
TITLE OF BILL: An act to amend the labor law, in relation to the restrictions on consecutive hours of work for nurses   PURPOSE: This bill would expand the definition of "health care employer" to include facilities operated under the social services law for the purposes of prohibiting mandatory overtime. It would also put in place penalties for employers who violate this section of law.   SUMMARY OF PROVISIONS: Section 1. Amends section 167 of the labor law to include facilities operated under the social services law to the definition of "health care employer." This would cover facilities operated by the Office of Chil- dren and Family Services (OCFS). It would also add financial penalties against employers who violates this section of law relating to forced overtime. Section 2. Effective date.   JUSTIFICATION: In 2008, the Legislature passed the "no mandatory overtime" law. Howev- er, in the last decade the law has frequently been violated, with no repercussions. This bill would include some much needed enforcement language requiring financial penalties for employers who violate the law. The original law also left out some nurses, including those who work for the Office of Children and Family Services (OCFS). This bill would correct that shortcoming.   LEGISLATIVE HISTORY: New bill for 2017 session.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: On the sixtieth day after it shall have become a law.
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STATE OF NEW YORK ________________________________________________________________________ 8354 2017-2018 Regular Sessions IN ASSEMBLY June 12, 2017 ___________ Introduced by M. of A. ABBATE -- read once and referred to the Committee on Labor AN ACT to amend the labor law, in relation to the restrictions on consecutive hours of work for nurses The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 167 of the labor law, as added by chapter 493 of 2 the laws of 2008, is amended to read as follows: 3 § 167. Restrictions on consecutive hours of work for nurses. 1. When 4 used in this section: 5 a. "Health care employer" shall mean any individual, partnership, 6 association, corporation, limited liability company or any person or 7 group of persons acting directly or indirectly on behalf of or in the 8 interest of the employer, which provides health care services (i) in a 9 facility licensed or operated pursuant to article twenty-eight of the 10 public health law, including any facility operated by the state, a poli- 11 tical subdivision or a public corporation as defined by section sixty- 12 six of the general construction law, or (ii) in a facility operated by 13 the state, a political subdivision or a public corporation as defined by 14 section sixty-six of the general construction law, operated or licensed 15 pursuant to the mental hygiene law, the education law, the social 16 services law or the correction law. 17 b. "Nurse" shall mean a registered professional nurse or a licensed 18 practical nurse as defined by article one hundred thirty-nine of the 19 education law who provides direct patient care. 20 c. "Regularly scheduled work hours", including pre-scheduled on-call 21 time and the time spent for the purpose of communicating shift reports 22 regarding patient status necessary to ensure patient safety, shall mean 23 those hours a nurse has agreed to work and is normally scheduled to work 24 pursuant to the budgeted hours allocated to the nurse's position by the 25 health care employer; and if no such allocation system exists, some EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11550-01-7A. 8354 2 1 other measure generally used by the health care employer to determine 2 when an employee is minimally supposed to work, consistent with the 3 collective bargaining agreement, if any. Nothing in this section shall 4 be construed to permit an employer to use on-call time as a substitute 5 for mandatory overtime. 6 2. a. Notwithstanding any other provision of law no health care 7 employer shall require a nurse to work more than that nurse's regularly 8 scheduled work hours, except pursuant to subdivision three of this 9 section. 10 b. Nothing in this section shall prohibit a nurse from voluntarily 11 working overtime. 12 3. The limitations provided for in this section shall not apply in the 13 case of: 14 a. a health care disaster, such as a natural or other type of disaster 15 that increases the need for health care personnel, unexpectedly affect- 16 ing the county in which the nurse is employed or in a contiguous county; 17 or 18 b. a federal, state or county declaration of emergency in effect in 19 the county in which the nurse is employed or in a contiguous county; or 20 c. where a health care employer determines there is an emergency, 21 necessary to provide safe patient care, in which case the health care 22 provider shall, before requiring an on-duty employee to remain, make a 23 good faith effort to have overtime covered on a voluntary basis, includ- 24 ing, but not limited to, calling per diems, agency nurses, assigning 25 floats, or requesting an additional day of work from off-duty employees, 26 to the extent such staffing options exist. For the purposes of this 27 paragraph, "emergency", including an unanticipated staffing emergency, 28 is defined as an unforeseen event that could not be prudently planned 29 for by an employer and does not regularly occur; or 30 d. an ongoing medical or surgical procedure in which the nurse is 31 actively engaged and whose continued presence through the completion of 32 the procedure is needed to ensure the health and safety of the patient. 33 4. The provisions of this section are intended as a remedial measure 34 to protect the public health and the quality of patient care, and shall 35 not be construed to diminish or waive any rights of any nurse pursuant 36 to any other law, regulation, or collective bargaining agreement. 37 5. If, after investigation, the commissioner determines that an 38 employer has violated this section, the commissioner shall issue to the 39 employer an order directing compliance therewith, which shall describe 40 particularly the alleged violation. A copy of such order shall be 41 provided to any employee who has filed a complaint and to his or her 42 authorized representative. The commissioner shall assess the employer a 43 civil penalty of not less than one thousand nor more than ten thousand 44 dollars, per violation. The employee shall receive an additional fifteen 45 percent of the overtime payment from the employer for each violation as 46 damages. 47 § 2. This act shall take effect on the sixtieth day after it shall 48 have become a law.