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Issues Update
American Journal of Nursing -
October, 2003 - Volume 103, Issue 10
Work and No Pay?
The ANA and other nursing groups are concerned about proposed overtime revisions.
When Illinois Nurses
Association member Karen Kelly, EdD, RN, CNAA,BC, learned that overtime pay
for nurses might be in jeopardy, she felt compelled to e-mail her
congressman.
“I was outraged at the Bush
administration,” said Kelly, who took action after receiving an
electronic alert from the ANA on the Department of Labor’s proposed
regulatory changes that alter overtime pay eligibility. “In a time
when so many nurses are forced to work mandatory overtime, I think the
proposed changes are a slap in the face of all nurses.”
This summer, through its grassroots network Nurses
Strategic Action Team, the ANA repeatedly alerted nurses about proposed
regulatory and legislative measures affecting overtime. Kelly was one of
several hundred nurses who called on lawmakers to prevent changes to
overtime provisions that could harm nurses and patient care.
Victory, But Threats Linger
Through their efforts, the ANA, its constituent member
associations (CMAs), and individual nurses successfully blocked federal
legislation (H.R. 1119) from going forward in the U.S. House of
Representatives that would have allowed employers to substitute
compensatory time for time-and-a-half overtime pay.
The U.S. Department of Labor’s proposed changes
to the Fair Labor Standards Act (FLSA) could affect an undetermined number
of nurses and health care support staff, said Sheila Abood, MS, RN, the
ANA’s associate director of governmental affairs. Under one proposed
revision, an employee who holds a “position of responsibility”
would be exempt from overtime benefits.
“All nurses hold ‘positions of
responsibility’ because they are responsible for patient
outcomes,” Abood said. “Virtually every nurse could be
classified as an ‘administrative employee’ under this new and
vague definition.”
Nurses and other health care workers also could lose
overtime benefits if they fall under the revised definitions of an
“executive” or a “learned professional.” For
example, nurses who spend any time supervising the work of others could be
considered executives. And employees who gain expertise through work or
technical training could be considered learned professionals.
Further, the revised rule would prevent employees who
make more than $65,000 a year from earning overtime pay. This particularly
could affect nurses with many years of experience or who work in areas with
high costs of living.
And finally, the ANA is concerned with the
proposal’s overall lack of clarity. This murkiness could leave who is
eligible for overtime pay to the discretion of the employer. The
Department of Labor says roughly 650,000 workers would lose overtime
benefits under the revised FLSA. The Economic Policy Institute, a think
tank in Washington, DC, places the number closer to 8 million.
“Federal policymakers need to think long and
hard before they change the wage structure of American workers, including
nurses who already are in short supply,” said ANA president Barbara
Blakeney, MS, APRN,BC, ANP. “Given the ambiguity of
the proposed regulations, we can’t predict their impact on
nurses. We want to make sure that the changes don’t lead to nurses
and support staff working longer hours, because employers have no incentive
to staff units appropriately.”
Actions and Reactions
The ANA sent comments to the Department of Labor
outlining its concerns about the proposed regulations, lobbied Congress on
all anti-overtime measures, and networked with other nursing organizations
and CMA leadership to build greater awareness on this issue.
The Maryland Nurses Association (MNA) and the New
York State Nurses Association (NYSNA) were among the CMAs
investigating the proposed regulations and their possible effects on their
members.
“Most of our members are covered by collective
bargaining contracts, so their pay is governed by their contracts,”
said NYSNA executive director Martha Orr, MN, RN, CAE. “But for RNs
who are not union members this could be devastating.”
Orr believes that the proposed regulations could lead
to even worse staffing conditions and abuse of overtime, which are major
factors in nurses’ lives. A 2002 New York state survey revealed
that 52% of the nursing workforce worked overtime repeatedly, she said.
NYSNA member Sharon L. Eolis, CRNP, RN, reported a
“chronic run” of mandated overtime at her facility, where she
chairs the bargaining unit grievance committee.
Although Eolis is concerned about nurses being forced
to work overtime, she is even more worried that the proposed redefinitions
of overtime pay exemptions could lead to more nurses being classified as
“managers” and therefore ineligible for union membership and
protection.
“I think these changes can cause nurses to lose
their bargaining power, and in turn, control of their practice and their
work environment. And they are not in the best interest of patients,”
Eolis said.
Although it’s not the biggest issue for her,
Eolis also believes the $65,000 salary cap for overtime pay eligibility is
unfair.
“I’ve been a nurse for many years,”
she said. “I’ve got seniority and years of experience. Why
should I be punished?”
Maryland nurses also have voiced their concerns to the
MNA about the revisions’ potential effects on staffing, as well as
confusion about the meaning of terms such as “positions of
responsibility.”
“If we force nurses to cover more shifts and not
get paid, we will push them against the wall and out of bedside
care,” said MNA executive director Kathryn Hall, MS, RN, CNAA.
“We need to retain qualified nurses at the bedside, and we want to
recruit young people into the profession. If we change these regulations,
we won’t be able to maintain the scheduling flexibility we say
nursing has or the pay levels that nurses deserve.”
Hall added, “The bottom line is that nurses who
don’t want to work overtime, should not be forced to do so. And those
who want to work overtime, should be compensated for the time they put
in.”
Hall also questions how regulatory changes would wash
with a state law banning mandatory overtime that MNA fought to get passed
in 2002.
In another development, 10 other nursing associations
sent a letter to the Department of Labor warning regulators that exempting
health care professionals from overtime regulations could exacerbate an
already dangerous shortage of U.S. nurses.
“We also asked the labor department to consider
the nursing workforce separately when considering overtime exemptions and
to extend the comment period (which ended June 30),” said Melinda
Ray, MSN, RN, director of public affairs for the Association of
Women’s Health, Obstetric and Neonatal Nurses (AHWONN). “We
also are not only concerned about what’s in the regulations, but how
they will be viewed by the states. The states may use these federal
regulations as the basis for state law.”
That’s a concern shared by the Emergency Nurses
Association (ENA), another organization that signed the letter.
“What the Department of Labor is proposing is
very complicated and not clear,” said Kathi Ream, ENA public policy
consultant. Part of the confusion lies in whether the current law, passed
in 1938, ever made nurses eligible for overtime pay under federal law.
“Yet staff nurses always have been compensated
for overtime work,” she added.
Mary Jagim, BSN, RN, CEN, is the nurse manager of a
North Dakota ED and the only nurse in her department currently exempt from
overtime law protections. And that’s the way she’d like to keep
it.
“It seems to me that nurses should only be
considered exempt if they have defined roles and responsibilities that
don’t vary based on patient volume and needs,” said Jagim, a
North Dakota Nurses Association member and vice chair of ENA’s
government affairs committee. “And how can you determine what’s
an appropriate salary for part-time nurses, especially when they are then
asked to work beyond their regular hours?”
Currently, the Department of Labor is reviewing
the comments it has received since proposing the FLSA revisions in the
March 31 Federal Register. Based on those comments, regulators could revise
their proposal, which means nurses would have another opportunity to
provide more input on potential overtime pay changes. Or regulators could
publish a final rule, which would include a date for the new standards to
be implemented.
As We Went To Press...
On Sept. 10 the U.S.
Senate approved an amendment by Sen. Tom Harkin (D-IA) to the FY 2004
Labor, Health and Human Services, and Education Appropriations bill that
would block the proposed overtime regulations by barring the Department of
Labor from spending money on their implementation. This ANA-supported
amendment will be part of the conference committee negotiations for the
appropriations bill.
Susan Trossman is senior reporter for the American Nurse at the ANA.
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