FAQs

by Bill Cruice, Esq., PASNAP Executive Director

Q

The licenced staff at our facility have received overtime pay for anything over 8 hrs or anything over 40 hrs per week since the facility opened. Today they told us that the new policy is anything over a 40 hr work week. The RNs have worked 12 hr shifts for the last several years because of lack of staff. Is this legal? Also new management is stating that a doctors excuse does not count as a legal absence,in order for it to count you must be admitted to the hospital.
–T. Yingling, RN, Somerset County

A

Unless you are represented by a union and/or covered by a collective bargaining agreement, in Pennsylvania employees are considered to be employed “at-will.” This basically means that your employer can change any policy at any time provided that it does not otherwise violate a state or federal statute or regulation. In this case, an employer that has not agreed otherwise in a union contract may choose to pay overtime at the minimal federal standard, which means all hours more than 40 in a week, regardless of how many have been worked in any particular day.

With respect to the requirement that employees must be hospitalized before they will pay sick time, I must say that while this policy seems absolutely barbaric, it is likely not illegal unless in its application it discriminates against employees because of their gender, race, age, pregnancy or because they are attempting to utilize time off under the Family and Medical Leave Act.

Q

I work in a labor and delivery unit that routinely increases the nuber of call slots we have to take when we are short due to FMLA’s, vacancies and illness. Is this allowed under the new law? Over the last 3 years we have had to take anywhere from 2-8 4 hour slots in a 4 week schedule. Also, the hospital has started requiring a 30 minute arrival time regardless of where the nurses live, requiring some of us to stay in the hospital or nearby for only $2 per hour if we can’t get to work from home in 30 minutes. Is this legal?
–Robin, RN, Lancaster

A

Act 102, the law that prohibits mandatory overtime specifically forbids health care facilities from “using on-call time as a substitute for mandatory overtime or a means of circumventing the act.” It seems that requiring up to 8 on-call slots in a 4 week period may violate this section of the law. If this practice is continuing when the law takes effect in July, my suggestion would be to contact the Pennsylvania Department of Labor and Industry and file a complaint regarding your hospital’s compliance with the law. Of course, minimizing burdensome call requirements is precisely the type of issue that is best handled through collective bargaining, where nurses join together to maximize the inherent power they have as professional nurses.

It is not illegal for a hospital to require a 30-minute arrival time for employees who are on-call. In Pennsylvania, absent a union contract, employees are employed “at-will,” which means an employer is free to establish any rules they desire provided they do not otherwise violate prohibitions against racial, gender, age or disability discrimination. $2 per hour is definitely on the low side compared to comparable hospitals.

Q

I work at a major trauma center in Philadelphia. Under our health insurance plan, we have to pay $100 per day for every day that we (or our family members) are in the hospital if we decide to use another hospital other than the one we work at. My co-workers and I are pretty upset about this—is this normal for large hospitals in the Philadelphia area? –K. Bashford, RN, Philadelphia

A

Requiring such large co-pays of professional nurses in the Philadelphia area is not very typical. But large hospitals and health systems negotiate the details of their health plans with large insurers like Blue Cross. The more co-payments that are in the plan, the cheaper the plan is for the employer, in this case, your hospital.

PASNAP-represented members at large Philadelphia hospitals such as Temple University Health System may choose any hospital in the Blue Cross network and pay no co-payments for their inpatient hospital stays. While many employers charge employees huge co-payments for such plans, Temple nurses pay a total of $89 per pay period for both their medical and prescription plans.

Temple nurses have been able to win such a solid deal on the health insurance because they have maintained a strong, professional nurses’ union that negotiates benefits, pension, salaries and other working conditions with Temple Administration on a regular basis.

Q

Two years ago our unit voted on a so called “on call” system where as if there is a call off or a staffing insuffiency whoever is on call has to come in. Every RN on the floor must sign up for 16 hours of on call time each 4 week shedule period. I feel this is really mandatory overtime. In July when the new law takes effect can they still impose this “on Call” just because everyone voted for it? We do not have a union.
–T. Chylinski, RN, Erie

A

Act 102, the law prohibiting mandatory overtime, becomes effective on July 1, 2009. A section of the law dealing with on-call time says the following: “nothing in this paragraph shall be construed to permit a health care facility or employer to use on-call time as a substitute for mandatory overtime or a means of circumventing the intent of this act.”

While I would probably want to learn a little more about the scheduling of your unit that you describe, it would seem that your on-call system would run contrary to the intent of the new law. The new law does not apply to on-call in the traditional areas where on-call has been utilized to deal with sudden needs related to patient care, such as the OR, PACU, Cath lab, etc. At the same time, the law specifically prohibits the use of mandatory overtime to deal with vacancies that are the result of chronic short staffing.

My suggestion is to educate your manager and co-workers regarding the new law. If your management violates the new law after it takes effect, contact your local union representative or local union president at your hospital. This will be the quickest route to ensuring your management does not violate the law. If you are not part of a local union at your hospital, you can contact the Pennsylvania Department of Labor and Industry (after July 1, 2009) at 1-800-932-0665 to file a complaint.

Q

My co-workers and I frequently work through our lunch periods—there isn’t enough staff to cover our patients so we end up either eating our meals at the nurses’ station or in our break room where we are interrupted many times during our so-called 30 minute lunch break. It seems like we are working for free for many of these unpaid breaks. Is this legal? What should I do?
–-N. Schiller, RN, Pittsburgh

A

Under the federal Fair Labor Standards Act (FLSA), employees must be paid for all time worked. There are no exceptions to this rule. Over the years, there have been many, many cases involving nurses and other health care employees who have won significant amounts of back pay because they were not paid for lunch breaks that they had worked through.

The law is clear. Employees must be completely free from work demands while on unpaid lunch breaks. The “eating at the nurses’ station” situation is not even a close call: you must be paid for all such time going back two or possibly even three years. It does not matter that your supervisor had no direct, personal knowledge that you worked through your lunch. You must be paid and very likely at time and one-half if you are a full time employee.

The Department of Labor has also required employers to make restitution to nurses and other health care employees in situations where nurses are in a lounge or break room but they are routinely interrupted to respond to phone calls, answer questions, etc.

You have several options on reclaiming the money owed to you and putting a stop to this practice:

1. Contact the Regional Office of the federal Department of Labor to file a complaint.

2. Contact an attorney through the National Employment Lawyers Association (nela.org).

3. If you are a member of a union, contact your local union president or union staff representative to initiate a grievance. This is probably the quickest route to reclaiming the money owed to you and ending the practice.