• Healthcare Employers Struggle to Comply with Act 102
  • June 21, 2012 | Author: Jane L. Volk
  • Law Firm: Meyer, Unkovic & Scott LLP - Pittsburgh Office
  • Pennsylvania's Prohibition of Excessive Overtime in Healthcare Act (commonly referred to as "Act 102") has been in effect since July of 2009 and healthcare employers are struggling to achieve compliance without guidance from any interpretive regulations or judicial interpretation. Act 102 prohibits a health care facility[1] from requiring employees [2] to work more than agreed to, predetermined shifts. The area in need of clarity is the provision permitting mandatory overtime for certain "unforeseeable emergent circumstances" which include "unexpected absences discovered at or before the commencement of a scheduled shift which could not be prudently planned for ... and which would significantly affect patient safety" and only if the employer exhausts all other reasonable efforts first. The law specifically provides that the term "unforeseeable emergent circumstance" does not include "vacancies that arise as a result of chronic short staffing." The foregoing terms and concepts obviously leave much room for interpretation and none has yet been forthcoming.

    Act 102 is enforced by Pennsylvania's Department of Labor & Industry and utilizes a complaint form that is available on the Department's website.

    Administrative fines may be between $100 and $1,000 for each violation. The Act also forbids retaliation against an employee who refuses overtime under the appropriate circumstances. There is no specific provision in the Act for private causes of action, but is not out of the realm of possibility that a termination of employment in these circumstances could form a basis for a wrongful discharge cause of action.

    There was reported a recent labor arbitration decision arising from a nursing home in Johnstown where the employees are represented by the SEIU. In that labor arbitration case, brought under the parties' collective bargaining agreement, the Union asserted a violation of Act 102 even though this was a private labor arbitration. The arbitrator did consider that compliance with Act 102 was evidence of "just cause" under the collective bargaining agreement in suspending an employee who refused overtime. That employer had a system in place whereby employees' names would appear on the schedule with a star if they were the go-to person for overtime on a particular shift and the grievant there had failed to check the schedule and then refused the overtime assignment. The employer had first exhausted other reasonable means to staff the shift by seeking to obtain volunteers first.

    While this arbitration decision has no precedential effect, it is an early bellwether as to what will be deemed to be a "reasonable" overtime policy until clarifying regulations are adopted under Act 102.

    [1] A hospital, psychiatric hospital, rehabilitation hospital, hospice, ambulatory surgical facility, long-term care nursing facility, cancer treatment center using radiation therapy on an ambulatory basis, inpatient drug and alcohol treatment facility.
    [2] Individuals involved in direct patient care or clinical care and who are hourly, nonsupervisory employees.