Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Significant amendments to New York law regarding mandatory overtime for nurses took effect on June 28, 2023. The changes resulted from New York Assembly Bill 970 / Senate Bill 850, which Governor Hochul signed in March, amending Section 167 of the Labor Law. The legislation involved a “chapter amendment” modifying a bill previously signed by the governor on December 30, 2022.
New York’s Prohibition on Mandatory Nurse Overtime
Section 167(3) of the Labor Law limits when health care employers1 can require nurses to work beyond their “regularly scheduled work hours”2 or overtime.3 These limitations are subject to four exceptions, which remain unchanged:
- A healthcare disaster unexpectedly affecting the county or contiguous county;
- A federal, state or county declaration of emergency;
- A patient care emergency, including unforeseeable staffing events endangering patient safety; and
- An ongoing surgery or procedure for which the nurse’s continue presence is needed to ensure patient safety.
Good Faith Efforts for Voluntary Coverage Required
The amendment to Section 167 applies the requirement for employers to “make a good faith effort to have overtime covered on a voluntary basis” to each of these exceptions. Previously, this was required only in a patient care emergency. The statute identifies “good faith effort” to include, but not be limited to, calling per diem nurses and agency nurses, assigning floats, or requesting an additional day of work from off-duty employees to the extent such staffing options exist. Existing regulations and guidance have not specified the extent to which healthcare employers are required to seek such voluntary coverage, but previously issued guidance instructs that attempts to avoid the use of mandatory overtime and seek alternative staffing be documented by the healthcare employer.
Reporting of Exceptions
As amended, Section 167(5) requires that healthcare employers report to the New York State Department of Labor (NYSDOL) each time they require a nurse to work beyond their regular hours based upon any of the exceptions in Section 167(3).
For healthcare employers with significant amounts of mandatory nurse overtime, Section 167(5) now also requires reporting to NYSDOL and the State Department of Health (NYSDOH):
(1) the number of days mandatory overtime was required;
(2) the number of employees required to work mandatory overtime; and
(3) the dates and times mandatory overtime was required.
Healthcare employers that utilize mandatory overtime on 45 days or more during a three-month period are also required to file an explanation with the NYSDOH and NYSDOL, along with an estimate of when such overtime will end.
NYSDOL Enforcement Officer
The amended statute now requires the NYSDOL to establish an enforcement officer to “oversee investigations into any complaints of violations” of this statute. NYSDOL is authorized, for the first time, to assess civil penalties for violations of Labor Law Section 167. These penalties can range from up to $1,000 for the first violation, $2,000 for the second, and up to $3,000 for subsequent violations within a 12-month period. Failures to notify NYSDOL are limited, however, to $500 per violation.
Notably, the amendments signed by the governor on March 3, 2023, remove the requirement to pay employees 15% of the overtime payment as damages for violations resulting in mandatory overtime shifts. Departing from the December 2022 version, the current amendment does not provide for any monetary recovery by the employee. This addresses a concern raised by industry associations and healthcare employers. The statute does indicate that the NYSDOL will develop and make available on its website a poster containing information for employees about filing complaints of mandatory overtime violations.
Practical Considerations
As of this writing, NYSDOL has not yet issued guidance or information regarding these changes, nor has the state made available a system to comply with the reporting requirements. There is no period of time set forth in Section 167 to report the information required, and we continue to look for guidance from the state concerning this. In the meantime, we recommend that healthcare employers evaluate their existing practices regarding nurse overtime and consult with employment counsel to help reduce risks of violations of this provision.
See Footnotes
1 “Health care employers” include employers operating pursuant to Article 28 of the Public Health law, such as hospitals, nursing homes, diagnostic treatment centers, and state-operated facilities licensed under various state laws. NYLL § 167(1)(a).
2 The statute defines “regularly scheduled work hours” to include “pre-scheduled on-call time and the time spent for the purpose of communicating shift reports regarding patient status necessary to ensure patient safety,” and means “those hours a nurse has agreed to work and is normally scheduled to work pursuant to the budgeted hours allocated to the nurse’s position by the health care employer; and if no such allocation system exists, some other measure generally used by the health care employer to determine when an employee is minimally supposed to work, consistent with the collective bargaining agreement, if any.” See NYLL § 167(1)(c). Additional guidance is provided in the New York State Regulations. See 12 NYCRR § 177.2(h).
3 “Overtime” is not defined in NYLL § 167. However, 12 NYCRR 177.2(f) defines “overtime” as “work hours over and above the nurse’s regularly scheduled work hours.” This definition remains consistent with the guidance provided by the NYSDOL. See Nurse Mandatory Overtime Employer Requirements and Nurse Coverage Plan Standards Checklist (ny.gov) and Nurse Mandatory Overtime Frequently Asked Questions | Department of Labor (ny.gov).
