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Is it legal to mandate casual and per diem workers in NYS

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by Makaulasue Makaulasue (New) New

I work at a nursing home in NYS, I recently went from full time to casual due to family matters at home where I was unable to stay over when I was mandated. Yesterday I got a letter from the administrator saying starting next schedule all per diem employees will be required to do dots. Which is a form of mandatory overtime...if necessary. I just wanted to know if this was even legal in NYS for them to do this?

meanmaryjean, DNP, RN

Specializes in NICU, ICU, PICU, Academia. Has 44 years experience.

Facilities can set policies- you can vote with your feet.

MunoRN, RN

Specializes in Critical Care. Has 10 years experience.

New York state has mandatory overtime law for nurses, this means you can't be mandated to work beyond your agreed upon FTE, so I'm not sure why you felt you had to make the switch to per diem in the first place. As a per diem it depends on what your agreed hours per week and availability was when you started that position. If the employer is saying that you will be mandated to work above the number of hours that were agreed to then that would be illegal in New York state.

Esme12, ASN, BSN, RN

Specializes in Critical Care, ED, Cath lab, CTPAC,Trauma. Has 41 years experience.

As per the TOS we cannot offer legal advice. I strongly suggest you call the New York State nurses Association or the Labor Department.

Mandatory Overtime for Nurses

The Restrictions on Consecutive Hours of Work for Nurses Law, Section 167 of the Labor Law, went into effect on July 1, 2009.

Section 167 of the Labor Law:

  • Prohibits health care employers from mandating overtime for nurses
  • Stipulates the conditions for exceptions to this rule

The New York State Department of Labor enforces this

law.

The final regulations governing mandatory nurse overtime became effective October 12, 2011. To review the regulations please visit the

Legal section of the Department's website.

Frequently asked questions about the law and regulations are

here (open in a new window).

You may file a complaint with the Department of Labor IF

  • You are a nurse (RN/LPN)

AND

  • You believe that your employer forced you to work in violation of the law

This link will open up the necessary

complaint form for you to print.

Mandatory Overtime for Nurses - New York State Department of Labor

Being mandated to work additional time as a nurse in a nursing home is not the same thing as being mandated to work overtime. Yes they can mandate you to work additional hours on a given shift, say you are scheduled to work an eight but they are keeping you longer to cover a hole and now it is a 12-hour shift. All they have to do to keep you from hitting overtime is to reduce another shift of yours by that many hours. They can and they will. Nursing homes have a different set of rules than hospitals.

MunoRN, RN

Specializes in Critical Care. Has 10 years experience.

Nurse Mandatory overtime laws vary by state, and there states where that's how it works, but in New York nurses can't be mandated to work beyond their scheduled shift:

Q: What is meant by overtime?

A: Overtime” in this context is different from its usual meaning -- hours worked past forty in a given week. Here, overtime” means work hours over and above the predetermined and regularly scheduled work hours a nurse has agreed to work.

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New York's mandatory overtime law applies to nursing home nurses as well as hospital bashttps://labor.ny.gov/workerprotection/laborstandards/workers_rights/Mandatory_OT_FAQ.shtmed nurses.

Nurse Mandatory overtime laws vary by state, and there states where that's how it works, but in New York nurses can't be mandated to work beyond their scheduled shift:

New York's mandatory overtime law applies to nursing home nurses as well as hospital bashttps://labor.ny.gov/workerprotection/laborstandards/workers_rights/Mandatory_OT_FAQ.shtmed nurses.

Interesting. I worked in a nursing home in New York state that had printed out the very section of the New York state law that allowed exactly this thing. It did not apply to hospitals, but it did apply to nursing homes. There was some exemption somewhere, and as I said that piece of the law was printed and plastered to the wall by the time clock. I no longer work in nursing homes LOL.

Perhaps that exemption is triggered in the interest of patient safety. Let's face it, patient safety trumps all else. So perhaps the reason why nursing homes have been able to be exempt from the law you are quoting is in the interest of patient safety. Don't know, but I do know that it happens all the time every day. Horses can be and are mandated in those circumstances.

kbrn2002, ADN, RN

Specializes in Geriatrics, Dialysis. Has 19 years experience.

Perhaps that exemption is triggered in the interest of patient safety. Let's face it, patient safety trumps all else. So perhaps the reason why nursing homes have been able to be exempt from the law you are quoting is in the interest of patient safety. Don't know, but I do know that it happens all the time every day. Horses can be and are mandated in those circumstances.

Huh? They are mandating horses now? Anyway, the nursing home exemption makes some measure of sense. I work in LTC and staffing is always limited to the people on hand. It's not like they can pull a nurse from another floor to cover, often there is no other floor. Unfortunately somebody has to be there to provide care for the residents and that somebody is far too often the nurse [or CNA] that's already there is the one that has to stay to provide coverage for the next shift.

ETA: Our facility recently changed this policy as so many staff were going casual simply to avoid being mandated. Now the casual/per diem staff are mandated to stay over just like regular staff. This means of course that casual staff are much less likely to pick up a shift if they know they will most be likely be mandated to the next shift. That leaves yet another hole that doesn't get filled and means somebody else gets mandated instead. It's a vicious circle with no end in sight.

[bOLD]Huh? They are mandating horses now? [/bOLD] Anyway, the nursing home exemption makes some measure of sense. I work in LTC and staffing is always limited to the people on hand. It's not like they can pull a nurse from another floor to cover, often there is no other floor. Unfortunately somebody has to be there to provide care for the residents and that somebody is far too often the nurse [or CNA] that's already there is the one that has to stay to provide coverage for the next shift.

ETA: Our facility recently changed this policy as so many staff were going casual simply to avoid being mandated. Now the casual/per diem staff are mandated to stay over just like regular staff. This means of course that casual staff are much less likely to pick up a shift if they know they will most be likely be mandated to the next shift. That leaves yet another hole that doesn't get filled and means somebody else gets mandated instead. It's a vicious circle with no end in sight.

LOL autocorrect with voice texting will be the death of me! but I suspect you knew that I meant Nurses not Horses, right? ;-)

yes, from my LTC days it was always an issue when the weather turned bad or there was a streak of illness going around to get enough staff from shift to shift. One thing I DID like about that different than the hospital was that since at any given point an LPN and a CNA knew they'd be mandated to stay if a replacement couldn't be found for a call-in, they had big incentive to get on the phone and start calling everyone possible to come in and cover! Unlike the hospital where you'd get a "sorry I'm not staying" if they were feeling nice or "screw you not a chance!" if they weren't feeling nice. By knowing that they would have to be the ones to stay it wasn't nearly as hard to get someone to come in and cover, I wasn't the only one (as the supervisor) making phone calls. Still I'm glad to be out of LTC for other reasons, staffing being only part of it.