Banning Forced Overtime
A new law will ban mandatory overtime shifts for nurses at healthcare facilities across Pennsylvania beginning next summer. The state joins 12 others with similar laws. The law likely means more recruiting and staffing challenges for HR.

By Michael O'Brien

Thanks to House Bill 834, recently passed by both houses of the legislature in Pennsylvania and soon to be signed by Gov. Ed Rendell, nurses and other caregivers will no longer be subject to mandatory overtime at any healthcare facility in the state beginning July 1, 2009.

The commonwealth now joins 12 other states, including neighbors New Jersey, New York and West Virginia, which have also passed laws banning mandatory overtime, and five other states are currently considering similar measures.

Momentum for the law has grown as extensive research has shown a link between overtime in healthcare and medical errors.

One 2004 study by University of Pennsylvania researcher Ann Rogers found that the risk of medical errors increased when nurses worked overtime or worked more than 40 hours a week. The risk of error is three times higher when a nurse works 12.5 hour shifts or longer, according to the study.

The state's own Department of Health released a 2005 report, which found that 13.6 percent of the state's registered nurses worked at least some mandatory overtime hours during the two weeks before participating in the department's survey on the topic.

The passage of the bill comes after seven years of lobbying on the part of unions representing nurses, including the Service Employees International Union, Pennsylvania's largest healthcare workers' union with more than 20,000 employees.

Neal Bisno, president of SEIU Healthcare Pennsylvania, says the law will augment protection against mandatory overtime for everyone, especially nurses and other caregivers who are not part of a union.

"Many nurses in our union already have protection against mandatory overtime in their union contracts, but they reached out again and again to stand up for all patients and nurses who don't have the benefits of a union," he said. "Because of them, now all nurses and patients in Pennsylvania are protected."

While the law will protect caregivers from spending too much time on shift, it also opens the door for new challenges for healthcare HR executives in the states affected by such laws, according to Barry Elson, a partner with the law firm of Thorp Reed & Armstrong in Philadelphia, who specializes in labor and employment law.

"[Healthcare facilities] will have to increase their staffs to some degree, if that's possible," because of the overtime bans, he says.

"The irony of all of this, using Pennsylvania as an example, is that states that are close to each other have been passing similar legislation and [those same states] are going to be vying for the same pool of nurses and other workers," he says. "It will likely cause some hiring bonuses to be offered as well as start bidding wars on wages for some of these positions. ... There just aren't enough [qualified] people to go around."

Elson says the only thing that is keeping the growing tug-of-war for healthcare workers from getting out of hand is that the anticipated retirement of baby boomers hasn't come to fruition yet.

"With the economy being what it is ... people aren't leaving the job market as fast as anticipated," he says. "The hit hasn't been as hard, but a few years down the line it will be."

HR leaders at healthcare facilities in those states with overtime bans will have to work harder to present themselves to potential employees as great places to work.

"You have to make your place of employment more attractive or as attractive as it can be portrayed to draw people to work there," he says. "There's going to be an even greater choice of employers for workers to choose from."

It's also important, he says, that HR executives "know the specifics [of the law] and not just try to follow the spirit of the law generally."

But Kevin Troutman, an attorney at Fisher & Phillips LLP law office in Houston, says that unions may be using the mandatory overtime bans to increase tension between workers and managers, and that the laws are being passed in states with typically strong labor movements in place already.

"I hope not every state passes [a similar mandatory overtime ban law], because I think it's a bit of a wedge issue that the unions try to use, and it can be pretty divisive," he says. "The mandatory overtime issue is a little bit like the mandatory staffing ratios we see some groups trying to push. I think getting that specific and taking that much of a cookie-cutter approach is not good for patients and the hospital in the long run."

Troutman, who spent 17 years as a senior HR executive in the healthcare industry, says healthcare facilities' HR departments need to better educate nurse managers on how to communicate with their front-line nurses in order to foster a more communicative and productive environment for everyone.

"Nurse managers need to be educated to make the most of the people that are available to them, and sometimes that means using support staff such as certified nursing assistants," he says, adding, "We also need to work hard to increase capacity of nursing schools."

Troutman says hospitals and other healthcare facilities are usually very cognizant of the strains placed on nurses and take steps to prevent that strain from affecting their work.

"A fatigued nurse is not at his or her best, and I think hospitals are smart enough to recognize that," he says. "Most [healthcare facilities] want to keep their nurses and if they make their hospitals an unpleasant place to work, then they'll go somewhere else to work. ... And if you don't have nurses, you don't have a hospital."

He suggests HR executives continue to encourage nursing leadership, particularly at the unit level, and for nurse managers to better listen to their nurses and develop relationships so the nurses know they can talk to their managers.

"If [nurse managers] have a good enough relationship with their nurses such that they'll volunteer for overtime [when needed], then this mandatory issue will not be a problem," he says.

"HR people need to understand that they are bridge builders, and this can be a divisive issue. They need to keep it from becoming an 'us-against-them' issue," he says. "They've got to reach out and communicate."

October 29, 2008