Purpose

To determine if the Department of Labor is adequately enforcing the Restrictions on Consecutive Hours of Work for Nurses Law. The audit covers the period January 1, 2015 through June 30, 2017.

Background

The Department of Labor (Department) is charged with protecting workers in New York State. Section 167 of the New York State Labor Law – referred to as the Restrictions on Consecutive Hours of Work for Nurses Law (Law) – and Part 177 of Title 12 of the New York Codes, Rules and Regulations (NYCRR) were established to protect the public health and quality of patient care by limiting consecutive hours of work for Registered Nurses and Licensed Practical Nurses in non-emergency situations. The Law does not preclude nurses from volunteering to work overtime. The NYCRR requires health care employers to establish Nurse Coverage Plans to address typical patterns of staff absenteeism due to illness, leave, bereavement, and other similar factors; and identify alternate staffing methods to avoid the use of mandatory overtime. Employers must document their attempts to seek alternative staffing before resorting to mandatory overtime. If nurses feel that their employers violated the Law, they may file a complaint with the Department’s Division of Labor Standards (Division). In turn, the Division initiates cases to investigate single or multiple complaints against employers to determine compliance with the Law. Between January 1, 2015 and May 23, 2017, the Division closed 186 cases regarding 540 complaints.

Key Findings

• The Division lacks policies and procedures to effectively investigate complaints, resulting in inconsistent application and enforcement of the Law.
• The Division does not investigate nurse overtime complaints for State agencies on a timely basis.
• The Worker Protection Monetary (WPM) System lacks the functionality for management to oversee complaint investigations and effectively enforce the Law.
• The Division is unaware of which employers are subject to the Law, which limits the Department’s ability to provide outreach and education to all employers on the requirements of the Law, increasing the risk that some employers may be unfamiliar with the Law’s requirements.

Key Recommendations

• Establish policies and procedures to ensure that nurse overtime complaints are investigated timely using consistent methods and application of the Law.
• Improve the functionality of the WPM System to better assist management in tracking nurse overtime complaints and investigations in a comprehensive manner.
• Develop and maintain a listing of all employers covered by the Law.
• Establish an outreach and education program to ensure that all covered employers are aware of the Law and its requirements.
• Explore feasible actions to strengthen the Division’s enforcement options.

Other Related Audits/Reports of Interest

Department of Labor: Wage Theft Investigations (2013-S-38)
Department of Labor: Wage Theft Investigations (2015-F-9)
Department of Labor: Protection of Child Performers (2016-S-70)