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Working the Clock

January/February 2013
Feature Story

Overtime violations impact health workers and patient care.

SIX YEARS AGO, the Washington State Nurses Association brought legal action on behalf of the 1,200 registered nurses at Providence Sacred Heart Medical Center in Spokane to recover unpaid wages for denied rest periods. Late last year, the Washington State Supreme Court unanimously upheld nurses' statutory right to be paid overtime when their duties prevent them from taking a rest period.

The ruling was a victory for nurses, but it may have been an even bigger victory for their patients. The nurses association had been working for several years to ensure that nurses receive full, uninterrupted breaks because that dedicated time to rest can play a crucial role in preventing fatigue and fatigue-related errors. The decision provides a powerful incentive for hospitals to adequately staff for rest breaks.

The Fair Labor Standards Act (FLSA) requires employees to be paid overtime for every hour they put in beyond 40 in a workweek. But in hospitals and other facilities across the country, healthcare workers increasingly burdened by heavier workloads and fewer staff are compelled to do some of their work off the clock.

Perhaps hospitals will begin to see the wisdom of allowing their employees to work a standard shift or to request overtime when they work more than 40 hours, and to take their breaks. Hospitals nationwide have paid millions in back wages to settle claims by employees who were denied breaks or overtime pay.

"I think you have to use any means you can to ensure workers get their breaks and are not working off the clock," says Elex Tenney, president of the Oregon Federation of Nurses and Health Professionals (OFNHP). "Not getting time to eat, use the bathroom or just take a break ... affects not only the nurses' health, but the patients' as well."

Tenney says the nurses who work the 12-hour shifts are the ones who typically can't get breaks or have to use their break time for their nursing duties. "There are supposed to be nurses available to fill in while nurses take their breaks, but that is simply not happening. More often than not, those resource nurses are placed in other units."

These nurses are missing out on educational opportunities too, says Tenney. "We have education periods built in for nurses, but because they are not getting their proper break times, they are not getting to take part in necessary training sessions, either."

The bottom line is that short staffing, an issue that AFT Healthcare has vigorously challenged, prevents nurses from getting their breaks and jeopardizes patient care. "Healthcare workers may not demand their breaks either because they know they don't have the staff necessary to cover them, and they don't want to leave the floor unprotected," Tenney says.

Insisting on contractual and legal rights to breaks or overtime may be a challenge. However, the reluctance to demand a break or overtime pay must be met head-on, says Tenney. "We have to take care of the problem soon, because there will be an influx of new patients with healthcare reform. We will not be able to manage it safely."

Working off the clock has consequences

Two years ago, Harry Rodriguez, president of AFT Local 5123 at Lawrence & Memorial Hospital in New London, Conn., realized that working off the clock was a serious issue for his members when he learned that a member of the environmental services unit had gone on vacation, and the member who replaced him wasn't able to complete the same tasks each day. When Rodriguez looked into the matter, he discovered why the vacationing member was able to get so much done: He began the workday two hours earlier than scheduled.

The practice of employees coming in early and staying late or not taking breaks in order to fufill their assigned duties was not unusual throughout the hospital, says Rodriguez.

He took a two-pronged approach to tackle the problem: Rodriguez educated his members about violating the law, and he let the hospital CEO know that the hospital was in violation of the FLSA.

"If the practice didn't stop, the hospital was going to get hit for a lot of money," says Rodriguez.

The union worked together with hospital management to find a way to put a stop to the practice. Hospital management sent a letter to employees letting them know they were not allowed to work off the clock, and Rodriguez informed his members about the consequences of working off the clock: the hospital wasn't getting a true picture of its workers' productivity.

Thanks to everyone's efforts, working off the clock is being policed, says Rodriguez.

'A very tricky dance'

Nurses and health professionals in hospitals aren't the only ones not getting their breaks and working off the clock to get the job done. Workers in outpatient services face similar challenges.

Overscheduling patients isn't uncommon for outpatient service workers, says Tenney. She even has a name for the practice: work-creep. "Just like hospital workers, outpatient workers are supposed to get a lunch break and other break time, but that respite increasingly is being used to catch up on charting or making phone calls to patients. This is happening throughout the healthcare field—from nurses to home health to therapy. The workers are staying two to three extra hours to complete their tasks, says Tenney.

Nancy Amstad-Hite, a home health nurse for the Kaiser Home Health and Hospice Agency in Portland, Ore., and an OFNHP member, acknowledges that working off the clock is a problem for many healthcare workers. She is grateful for the union's involvement and guidance.

Our union contract ensures that members are paid for the time we work, says Amstad-Hite. "We are encouraged by our supervisors and the union to put in for our overtime."

But she knows there are some who spend time working off the clock. When it comes to paperwork and documentation, "It's so easy to say 'I'll do it later,' but we're not supposed to. You really have to keep it clean," she says. "It is a very tricky dance."

The work day starts at home and ends at home for most home health nurses. And during the day, the time blurs, says Amstad-Hite. The clock starts at 8 a.m. when the computer boots up and the nurse is out the door to the day's first appointment.

On average, a home health nurse will see as many as 20 patients a week and spend at least an hour with each one. A new patient can take up to three hours. "Ideally, you turn the computer off at 4:30. But that doesn't always happen," says Amstad-Hite. "Documentation is more complicated, and patients are sicker."

Amstad-Hite says they are expected to notify management of overtime work. There are some who work through breaks, but they aren't supposed to. "We have an advantage, but working off the clock still occurs."