Bill Text: NY A00970 | 2023-2024 | General Assembly | Introduced

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Bill Title: Provides for oversight of the use of mandatory overtime during an emergency.

Spectrum: Slight Partisan Bill (Democrat 10-4)

Status: (Passed) 2023-03-03 - signed chap.27 [A00970 Detail]

Download: New_York-2023-A00970-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                           970

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 11, 2023
                                       ___________

        Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
          tee on Labor

        AN ACT to amend the labor  law,  in  relation  to  the  restrictions  on
          consecutive  hours  of  work for nurses; and to amend a chapter of the
          laws of 2022 amending the labor law relating to  the  restrictions  on
          consecutive hours of work for nurses, as proposed in legislative bills
          numbers S. 1997-A and A. 286-A, in relation to the effectiveness ther-
          eof

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Paragraph c of subdivision 3 and subdivision 5  of  section
     2  167 of the labor law, as amended by a chapter of the laws of 2022 amend-
     3  ing  the  labor law relating to the restrictions on consecutive hours of
     4  work for nurses, as proposed in legislative bills numbers S. 1997-A  and
     5  A.    286-A,  are  amended  and  a new subdivision 7 is added to read as
     6  follows:
     7    c. where a health care employer  determines  there  is  an  emergency,
     8  necessary  to  provide safe patient care[, in which case the health care
     9  provider shall, before requiring an on-duty employee to remain,  make  a
    10  good faith effort to have overtime covered on a voluntary basis, includ-
    11  ing,  but  not  limited  to, calling per diems, agency nurses, assigning
    12  floats, or requesting an additional day of work from off-duty employees,
    13  to the extent such staffing options exist]. For  the  purposes  of  this
    14  paragraph,  "emergency",  including an unanticipated staffing emergency,
    15  is defined as an unforeseen event that could not  be  prudently  planned
    16  for by an employer and does not regularly occur; or
    17    5.  Oversight of the use of mandatory overtime during an emergency. a.
    18  The commissioner, in consultation with the commissioner of health, shall
    19  have the authority to promulgate any regulations necessary to carry  out
    20  the provisions of this section.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04036-01-3
        A. 970                              2

     1    b.  Any health care employer that utilizes an exception to the limita-
     2  tion on mandatory overtime provisions as  provided  for  in  subdivision
     3  three  of  this section shall notify the department when such provisions
     4  are in use.  If a health care employer has utilized the mandatory  over-
     5  time provisions as provided for in this section for fifteen days or more
     6  in  a  given  month, the employer shall report to the department and the
     7  department of health: (i) the number  of  days  mandatory  overtime  was
     8  required;  (ii)  the number of employees that were required to remain on
     9  duty in overtime status; and (iii) the dates and times  mandatory  over-
    10  time  was  required.    If a health care employer has utilized mandatory
    11  overtime provisions under this section for forty-five days  or  more  in
    12  any  consecutive  three month period the health care employer shall file
    13  with the department and the department of health an explanation for  why
    14  mandatory  overtime  was  required  and  provide an estimate of when the
    15  employer intends to cease the use of mandatory overtime.
    16    c. The department shall establish an enforcement  officer  to  oversee
    17  investigations into any complaints of violations of this section.
    18    d. The health care employer shall, before utilizing mandatory overtime
    19  provisions  and  requiring  an  on-duty  employee to remain, make a good
    20  faith effort to have overtime covered on a voluntary  basis,  including,
    21  but  not limited to, calling per diems, agency nurses, assigning floats,
    22  or requesting an additional day of work from off-duty employees, to  the
    23  extent  such  staffing  options exist. Failure to engage in a good faith
    24  effort pursuant to this section shall be a violation. Any  employee  who
    25  has  been  required  to  work  in  violation  of this section may file a
    26  complaint with the enforcement  officer  alleging  such  violation.  Any
    27  complaint made pursuant to this paragraph must be made in good faith.
    28    6.  Upon  receipt  of a complaint pursuant to subdivision five of this
    29  section, the enforcement officer may  cause  such  investigation  to  be
    30  made, in consultation with the department of health and shall notify the
    31  employer.  If,  after investigation, the commissioner determines that an
    32  employer has violated this section, the commissioner shall issue to  the
    33  employer  an  order directing compliance therewith, which shall describe
    34  particularly the alleged violation.  A  copy  of  such  order  shall  be
    35  provided  to  any  employee  who has filed a complaint and to his or her
    36  authorized representative.  The  commissioner  [shall]  may  assess  the
    37  employer a civil penalty in an amount not to exceed one thousand dollars
    38  for  a  first  violation, two thousand dollars for a second violation if
    39  within twelve months, or three thousand dollars for a  third  or  subse-
    40  quent  violation  of  this  section  if  within twelve months; provided,
    41  however, that the department may assess an employer a civil  penalty  of
    42  not  more  than five hundred dollars for any violation of paragraph b of
    43  subdivision five of this section.  [The employee shall receive an  addi-
    44  tional  fifteen  percent  of  the overtime payment from the employer for
    45  each violation as damages.]
    46    7. The department shall develop and make available on  its  website  a
    47  poster containing information for employees on filing a complaint pursu-
    48  ant to this section. Every health care employer shall display such post-
    49  er in a conspicuous location accessible to employees in the workplace.
    50    § 2. Section 2 of a chapter of the laws of 2022 amending the labor law
    51  relating to the restrictions on consecutive hours of work for nurses, as
    52  proposed in legislative bills numbers S. 1997-A and A. 286-A, is amended
    53  to read as follows:
    54    §  2.  This act shall take effect on the [sixtieth] one hundred eight-
    55  ieth day after it shall have become a law.
        A. 970                              3

     1    § 3. This act shall take effect immediately;  provided  however,  that
     2  section  one  of  this  act  shall take effect on the same date and same
     3  manner as a chapter of the laws of 2022 amending the labor law  relating
     4  to the restrictions on consecutive hours of work for nurses, as proposed
     5  in  legislative  bills  numbers  S.  1997-A  and A. 286-A, takes effect;
     6  provided further, that paragraph d of subdivision 5 of  section  167  of
     7  the labor law, as added by section one of this act, shall take effect on
     8  the  ninetieth  day  after  the enactment of such chapter of the laws of
     9  2022.