STAND. COM. REP. NO. 203

Honolulu, Hawaii

, 2005

RE: H.B. No. 538

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Health, to which was referred H.B. No. 538 entitled:

"A BILL FOR AN ACT RELATING TO MANDATORY OVERTIME FOR NURSES,"

begs leave to report as follows:

The purpose of this measure is to prohibit the practice of mandating nurses to work overtime.

Testimony in support of the measure was received from the Hawaii Government Employees Association, AFSCME Local 152, the Hawaii Nurses' Association, and seven nurses.

Testimony in opposition to the measure was received from the Department of Labor and Industrial Relations, the Hawaii Healthcare Association, Kaiser Permanente, The Queen's Medical Center, Kapiolani Medical Center for Women and Children, Oahu Care Facility, the American Organization of Nurse Executives, Hawaii Chapter, and the Pearl City Nursing Home.

Your Committee finds that the measure establishes two scenarios, one for nurses working on an alternative workweek schedule and another for nurses working normal eight-hour workdays. In the case of nurses working an alternative workweek schedule, the measure prohibits an employer from requiring a nurse to work any hours in addition to those scheduled in the nurse's alternative workweek schedule. In the case of nurses that work normal eight-hour workdays, the measure prohibits an employer from requiring a nurse to work any hours in addition to the scheduled eight hours. The measure also prohibits an employer from requiring a nurse to work in excess of forty hours per week, unless certain unforeseen circumstances exist, such as a declaration of a state of emergency that did not result from a labor dispute in the health care industry, and if the employer has made reasonable attempts to fill staffing needs through other alternatives.

The measure also establishes that an employer cannot discriminate, dismiss, discharge, or impose any other penalty on a nurse who refuses to accept overtime work and that any contract, agreement, or understanding executed after July 1, 2005, that requires a nurse to work overtime for reasons other than a declared state of emergency shall be void.

The measure does not prohibit a nurse from voluntarily accepting overtime work.

Finally, the measure exempts the advanced practice registered nurse categories of certified nurse midwives and nurse anesthetists from the mandatory overtime prohibition.

Your Committee finds that the issue of requiring mandatory overtime of nurses is very contentious, and crafting a solution that is not only fair to nurses as employees, but also concomitantly mindful of maintaining the public health and well-being, is a delicate balance to strike.

In considering this difficult subject, your Committee has reviewed the laws of a number of other states regarding the prohibition of imposing mandatory overtime upon nurses. States such as Connecticut, New Jersey, Washington, and West Virginia all generally prohibit such an imposition.

Of particular note are the statutes of Washington and West Virginia. These states' existing mandatory overtime prohibition for nurses are very similar to the concepts embodied in this legislation. These statutes also provide specific exceptions, in addition to declarations of a state of emergency, from the prohibition under which an employer may require a nurse to work mandatory overtime.

Your Committee, faced with limited time to deliberate further on this important and complex issue, requests that subsequent committees to which this measure will be referred, review the statutes of Washington (Revised Code of Washington, §49.28.140) and West Virginia (West Virginia Code, §21-5F-3) and consider the merits of these laws when attempting to resolve this issue.

Recognizing that the provision in the measure that voids, after July 1, 2005, any requirement in an existing collective bargaining contract that a nurse work mandatory overtime may be unconstitutional, your Committee has amended the measure by specifying that, upon the expiration of such an existing collective bargaining contract, any extension thereof or a new contract shall not contain requirement that a nurse work mandatory overtime.

To facilitate further discussion and to ensure that the measure progresses through the legislative process, your Committee has also amended the effective date of the measure by changing it to July 1, 2020.

As affirmed by the record of votes of the members of your Committee on Health that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 538, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 538, H.D. 1, and be referred to the Committee on Labor & Public Employment.

Respectfully submitted on behalf of the members of the Committee on Health,

 

____________________________

DENNIS A. ARAKAKI, Chair