HOUSE BILL NO. 50 "An Act relating to limitations on mandatory overtime for registered nurses and licensed practical nurses in health care facilities; and providing for an effective date." 2:45:07 PM Vice-Chair Thomas MOVED to ADOPT Amendment 1 (26- LS0274\U.1, Wayne, 3/23/10): Page 4, line 23, following "hours": Insert"; (9) a nurse who is covered by a collective bargaining agreement, so long as the work is subject to that agreement" Co-Chair Stoltze OBJECTED. Vice-Chair Thomas explained that the amendment related to bargaining units. REPRESENTATIVE PEGGY WILSON, SPONSOR, testified that she did not support the amendment. REBECCA ROONEY, STAFF, REPRESENTATIVE PEGGY WILSON, noted that the unions had testified in support of the legislation. She argued that HB 50 was not about contract negotiations and collective bargaining but about patient safety. She maintained that the bill would standardize work and rest practices across the state and would ensure that rested nurses are caring for patients regardless of how well a bargaining unit has done. Vice-Chair Thomas stated that he had proposed the amendment because he did not want the legislature to do the work of bargaining units. He did not recall legislation that was involved in collective bargaining decisions and questioned the legality of such a move. Representative Wilson stated that the amendment would "gut" the bill. She argued that the unit could still bargain any way it wanted, but the legislation would provide for a standard of care for patients and would make a difference for nurses as well. She wanted to create a provision that would allow nurses to come forward. She believed all the nurses that had come to her regarding the issue worked for hospitals with unions. Vice-Chair Thomas did not want collective bargaining units to have an advantage. Vice-Chair Thomas WITHDREW Amendment 1. 2:50:41 PM AT EASE 2:54:27 PM RECONVENED Vice-Chair Thomas MOVED to ADOPT Conceptual Amendment 2: Nurses cannot moonlight and have two or more jobs. Co-Chair Stoltze OBJECTED for discussion. Vice-Chair Thomas explained that nurses should not have more than one or two jobs if the issue is truly work safety. Representative Fairclough spoke in opposition to the amendment. She knew nurses with multiple jobs. She relayed the story of a single mother who was a school nurse that did not make enough income. The nurse took on two more jobs and was able to handle her responsibilities well. She thought the amendment was too broad. 2:58:05 PM Vice-Chair Thomas talked about residential psychiatric care. He was concerned about a nurse having two high-stress jobs with long hours. He believed the measure needed to be restricted to protect patients. Representative Fairclough reported that she had many good friends who are nurses. She told the story of another nurse friend with two jobs, one of which was crisis-oriented. She emphasized that different people had different levels of stamina and she did not want individuals who can handle certain situations limited by the legislation. Vice-Chair Thomas relayed a story about fishing for three days without sleep, which he can no longer do. The intent of the amendment was to encourage older people not to work as hard as younger people can. Vice-Chair Thomas WITHDREW Amendment 2. 3:02:41 PM Representative Fairclough noted that age is not the issue with endurance. Vice-Chair Thomas wanted nurses restricted to an 8-hour day to relieve stress. He pointed to similar restrictions done with the mining industry. Representative Kelly stated concerns about the bill. He referred to testimony from witnesses implying that the unions are not up to the job of regulating wages, hours, and conditions, including safety issues. He suggested hearing from the Department of Labor and Workface Development (DLWD). He was concerned about labor issues represented employees cannot solve themselves without government stepping in. 3:07:00 PM GREY MITCHELL, DIRECTOR, DIVISION OF LABOR STANDARDS AND SAFETY, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, reported that DLWD is neutral regarding HB 50. He could not explain why the unions are having a difficult time with the issue. Representative Kelly asked whether the area was an unpermitted one to bargain in. Mr. Mitchell responded that it was not. Representative Doogan questioned what percentage of nurses were unionized. Representative Wilson responded about 50 percent. Representative Kelly asked whether anything prevented unorganized employees from becoming organized. Mr. Mitchell answered no. Representative Wilson commented that hospitals say there is not a problem. She questioned why they are afraid of the issue. 3:10:19 PM Mr. Mitchell addressed the fiscal note by the department. He described the difficulty of ascertaining the fiscal impact. The amount in the fiscal note is based on review of licensed nurses. The Department of Commerce and Economic Development monitors the licenses of registered nurses (RNs) and licensed practical nurses (LPNs); as of March 2010, there are 10,357 RNs and 1,052 LPNs. He noted that there is a separate license for temporary nurses, of which there are 140 RNs and LPNs combined. Mr. Mitchell reported that the department attempted to account for what type of work might be required by the bill, which requires the department to take and investigate complaints based on violations or coercion when an employee was required to work over their scheduled nursing shift or to accept an overtime assignment when safety is compromised, in the nurse's opinion. He maintained that the language about the issue of a nurse's opinion of compromised safety tends to create a scenario with a lot of potential for complaints. Mr. Mitchell continued that the average wage and hour investigator handles a caseload of approximately 50 investigations per year on overtime, minimum wage, prevailing wage claims, and so on. Therefore, 50 valid claims by nurses as a result of potential violations under the bill would keep one investigator busy full time. In addition, different provisions in the bill will require enforcement by the department, including the 10-hour off- duty provision after the scheduled shift, enforcing a requirement for the employer to have an anonymous complaint process, a posting requirement of the rules, and so on. Mr. Mitchell described a typical investigation. First, the department receives a complaint. There needs to be a quick screening process to determine the validity of the complaint, since the employer is required by the bill to be notified within three working days of the complaint. The department would then follow up with the employer and collect records of the shifts and the time worked. The documents might have to be subpoenaed, if they are not volunteered. Next, an audit of the records would determine whether there was a violation. In some cases, there may not be good records; witnesses would need to be interviewed and sworn statements taken. The investigator would then issue a written finding with a conclusion based on the facts. The department would issue a reprimand or civil penalty under the statute. Although the bill does not mention it, the department would have regulation authority to administer the law; DLWD believes a hearing process would be required to allow people issued a reprimand or civil penalty to appeal and potentially have rights to a hearing. 3:15:04 PM Mr. Mitchell added that investigations of retaliation, termination, threats, changes in work schedules, and other things could also happen. Complaints related to possible retaliation can be extremely difficult and time-consuming to investigate. He pointed out that the amendment removing the Department of Law (DOL) from the procedure would affect the fiscal note, as the fiscal note included $5,000 for assistance from them. Mr. Mitchell provided an overview of the numbers in the fiscal note: · $71,800: Wage and hour investigator · $3,000: Travel related to complaints in distant locations · $13,800: Contractual costs (reduced by the $5,000 for DOL) · $3,800: Supplies, including computer and office equipment Co-Chair Hawker commended the detail on the fiscal note. He queried Mr. Mitchell's presumption that employers would act in a manner that would generate enough grievances to require an investigator. Mr. Mitchell responded that the department made its best guess based on the number of employees and number of facilities. He emphasized that the testimony generated by the bill revealed many nurses that felt coerced. Co-Chair Hawker wondered whether employers had been lying in the committees. He did not know who to believe. He stated that he was skeptical of the department's fiscal note without actual experience. 3:19:01 PM Representative Austerman asked whether hospital employees could come to the department under current law. Mr. Mitchell responded that the employees could make complaints to the department in some circumstances, such as a minimum wage claim or some overtime situations. Representative Austerman established that nurses could not currently file a complaint with DLWD about being coerced into working extra hours. Mr. Mitchell agreed that there was no restriction related the number of hours nurses could be required to work. Representative Austerman asked when the department anticipated hiring the position described in the fiscal note. Mr. Mitchell replied that the position would be hired as soon as possible after the July 1, 2010 effective date in anticipation of complaints coming in. Representative Austerman thought the fiscal note was inappropriate at this time and thought the department should come back the next year with a supplemental request. He referred to documentation supplied by nursing homes and hospitals reported zero overtime complaints. Representative Doogan believed there were situations in which reasonable people could disagree on the rules of working. He described 30 years of experience with disputes that were not indicative of a lack of maturity but of understandable disagreement. He thought the bill attempted to create a better way of dealing with disagreement. He opined that the department could absorb the costs until the next legislative session and report back; if the employer's numbers are correct, not much money would be needed. 3:23:36 PM Co-Chair Hawker directed the preparation of an indeterminate fiscal note for the bill. Vice-Chair Thomas asked whether the bill would give bargaining units an advantage. Mr. Mitchell replied that the bill does not appear to give either union or non-union entities an advantage. Vice-Chair Thomas wanted all groups to be treated equally. Representative Fairclough questioned the Department of Health and Social Services fiscal note showing two additional full-time positions at the Alaska Psychiatric Institute (API) but no dollar amount. Representative Wilson commented that the positions are currently unfilled. RON ADLER, DIRECTOR/CEO, ALASKA PSYCHIATRIC INSTITUTE (via teleconference), replied that he could not answer the question. He noted that in FY 09, API had a total of 374.5 hours of mandatory overtime. In an effort to reduce mandatory overtime, in the first six months of 2010 API has logged in 106 hours. He did not know who would be tracking those hours. 3:28:27 PM Representative Fairclough queried the two positions with zero impact. WILDA LAUGHLIN, LEGISLATIVE LIAISON, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, pointed to page 2 of the fiscal note detailing that any additional cost associated with the physicians and on-call system will be offset by the cost savings from reduced overtime payments. Representative Fairclough spoke in favor of HB 50. She believed the costs were reasonable because of the safety issues. She asserted that the bill would level the playing field for non-union and union hospitals and set a standard of care that all nurses and all employers can be held accountable to. She believed nurses had brought an issue forward that the legislature had an obligation to address. 3:32:06 PM Co-Chair Hawker MOVED to report CSHB 50 (FIN) out of Committee with individual recommendations and the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CSHB 50(FIN) was REPORTED out of Committee with a "do pass" recommendation and with three new zero notes by the Department of Health and Social Services and one indeterminate note by the Department of Labor and Workforce Development.