Mandatory Overtime for Nurses

Initially enacted July 1, 2009, Section 167 of the New York Labor Law restricts health care employers, as defined in the statute, from requiring nurses to work beyond their regularly scheduled hours, with four limited exceptions. Mandatory overtime is permissible only where the overtime is during or due to:

A health care disaster that increases the need for health care personnel;
A federal, state, or county declaration of emergency;
An unforeseen emergency and it is necessary to provide safe patient care that could not be prudently planned for by the employer and does not regularly occur; or
An ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence is needed to ensure the health and safety of the patient.

The law defines “health care employers” as employers operating according to Article 28 of the Public Health Law, including hospitals, nursing homes, diagnostic treatment centers, and state-operated facilities licensed under various state laws. “Nurses” are defined as registered nurses (RNs) and licensed practical nurses (LPNs).

Part 177 of Title 12 of the Official Compilation of Codes, Rules, and Regulations of the State of New York requires an employer to develop and implement a Nurse Coverage Plan. Form LS 683 can be used to help employers create an effective and complete plan.

Effective June 28, 2023, an amendment to Section 167 expands upon the 2009 law by creating a reporting procedure for health care employers who utilize the exceptions to the limitations on mandatory overtime and establishing monetary penalties for violations. The amended law also expands the definition of “health care employer” to include facilities operated or licensed by the Office of Child and Family Services, and requires that health care employers display a poster with information on how to file a complaint with the Department of Labor (NYSDOL). In addition, the amended law establishes an Enforcement Officer within NYSDOL to investigate claims of violations.

The Department of Labor has appointed Jeanette Lazelle, Deputy Commissioner for Worker Protection, as Enforcement Officer.

Health Care Employer Reporting Requirements for Use of Exceptions to Limitation on Mandatory Overtime

Any time a Health Care Employer mandates overtime under an exception to New York State Labor Law Section 167, they must send an email and include the facility name, the type of health care employer the facility operates as, the facility address, a facility contact person, the specific exception the facility is utilizing, and any of the following information if applicable:

If they have mandated overtime for more than 15 days within a month include the date(s) of mandatory overtime, number of employees mandated, and the times they were mandated
If they have mandated overtime for more than 45 days in consecutive three months, they must also provide the reason why and provide the date they intend to stop mandating overtime

The Department may assess a civil penalty of up to $500 for failure to report as required.

All health care employers are required to display a poster containing information for employees on how to file a complaint with NYSDOL if they believe there has been a violation of this law. The poster must be displayed in a place that can be easily seen and is accessible to employees in the workplace. Download the poster here: English | Spanish

If you believe that your employer is in violation of the law, you can file a complaint or call (888) 4-NYSDOL, or (518) 457-9000.

File a Complaint

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

File a Complaint

Frequently Asked Questions

Q: What is a "health care employer"?	A: A "health care employer" is any: Individual Partnership Association Corporation Limited liability company that provides health care services in a facility licensed or operated under the public health law. This includes any facility operated by: The state A political subdivision A public corporation This also includes facilities operated under: The mental hygiene law The education law The correction law The executive law (section 504) by: The state A political subdivision A public corporation Examples include (but are not limited to): Hospitals Nursing homes Outpatient clinics Comprehensive rehabilitation hospitals Residential health care facilities Residential drug and alcohol treatment facilities Adult day health care programs Diagnostic centers Facilities operated or licensed by the Office of Child and Family Services
Q: When is mandatory overtime prohibited?	A: The law prohibits a health care employer from requiring a nurse to work overtime beyond the predetermined number of hours a nurse: Has agreed to work Is regularly scheduled to work Regularly scheduled hours may include: Prescheduled on-call time Time spent communicating shift reports on patient status needed to ensure patient safety However, employers may NOT substitute on-call time for mandatory overtime. We consider on-call time as time spent working for purposes of determining whether a health care employer has required a nurse to work overtime.
Q: What is meant by “prescheduled on-call time”?	A: On-call time must be prescheduled to be exempt from this law. A health care employer may not place an employee on call in a last-minute effort to cover an open shift. Rather, the nurse must be scheduled for “on-call” in accordance with: The facility’s normal scheduling procedures Any collective bargaining agreement..
Q: What steps must health care employers take to avoid using mandatory overtime?	A: A health care employer must prudently plan for patient care emergencies and meet routine staffing needs without using mandatory overtime by implementing a Nurse Coverage Plan. This plan should take into account typical patterns of staff absenteeism due to: Illness Leave Bereavement Other similar factors It must reflect the health care employer’s typical levels and types of patients served by the health care facility. The Plan must identify and describe alternative staffing methods available to the health care employer to ensure adequate staffing without mandatory overtime. This includes (but is not limited to): Contracts with per diem nurses Contracts with nurse registries/employment agencies for nursing services Arrangements for assignment of nursing floats Requesting an additional day of work from off-duty employees Development and posting of a list of nurses seeking voluntary overtime The health care employer must document all attempts to avoid the use of mandatory overtime and seek alternative staffing.
Q: Are health care employers required to post a notice relating to the mandatory overtime restrictions?	A: Yes. Health care employers are required to make their Nurse Coverage Plan readily available to all nursing staff. They must do this by: Posting/placing the plan in a location accessible to nursing staff Use any means available to make it accessible to nursing staff, e.g. electronic posting on the employer’s internal web site. The employer also must provide the Plan to: Any collective bargaining representative representing nurses at the health care facility The Commissioner of Labor, or his or her designee, upon request.
Q: When can a health care employer require nurses to work overtime?	A: Mandatory overtime is allowed only in these limited circumstances: a. a health care disaster, such as a natural or other type of disaster that increases the need for health care personnel, unexpectedly affecting the county in which the nurse is employed or in a contiguous county; or b. a federal, state or county declaration of emergency in effect in the county in which the nurse is employed or in a contiguous county; or c. where a health care employer determines there is an emergency, necessary to provide safe patient care. For the purposes of this paragraph, "emergency", including an unanticipated staffing emergency, is defined as an unforeseen event that could not be prudently planned for by an employer and does not regularly occur; or d. an ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence through the completion of the procedure is needed to ensure the health and safety of the patient.
Q: What is considered a “patient care emergency”?	A: A "patient care emergency" means a situation that: Is unforeseen Could not be prudently planned for And requires the continued presence of the nurse to provide safe patient care Before requiring an on-duty nurse to work beyond his or her regularly scheduled work hours to address a patient care emergency, the health care employer must: Make a good faith effort to have overtime covered on a voluntary basis Use all methods listed in its Nurse Coverage Plan. The health care employer must document attempts to secure nurse coverage: Use of phone logs Show other records appropriate to this purpose. An employer cannot deem a situation a patient care emergency if it is the result of routine nurse staffing needs due to: Typical staffing patterns Typical levels of staff absenteeism Time off typically approved by the employer for vacation, holidays, sick leave, and personal leave This applies unless the employer followed an acceptable Nurse Coverage Plan but failed to produce staffing to meet the particular patient care emergency.
Q: What constitutes a “good faith” effort by an employer before using mandatory overtime?	Before using mandatory overtime provisions and requiring an on-duty employee to remain, an employer must make a good faith effort to have overtime covered on a voluntary basis. This includes, but is not limited to, calling per diems, agency nurses, assigning floats, or requesting an additional day of work from off-duty employees, to the extent such staffing options exist. Failure to engage in a good faith effort is a violation of the law.
Q: What is a “health care disaster”?	A: A health care disaster means a natural or other type of disaster that: Increases the need for health care personnel Unexpectedly affects the county in which the nurse is employed or in a contiguous county Requires keeping existing on-duty personnel to maintain staffing levels necessary to provide patients with adequate care Examples of health care disasters include: Events involving multiple serious injuries (e.g. fires, auto accidents, a building collapse) Chemical spills or releases A widespread outbreak of an illness requiring hospitalization for many people served by the health care employer A riot, disturbance, or other serious event within an institution that increases the need for nursing care The health care employer determines if a health care disaster exists. This determination must be reasonable under the circumstances presented.
Q: Is a health care employer required to notify the Department of Labor when it uses an exception to the limit on mandatory overtime?	A. Yes, any covered health care employer must notify the Department of Labor of an exception to the limit on mandatory overtime when they are in use: (a) 15 days or more in a given month or (b) 45 days or more in any consecutive 3-month period. For any exception of 15 days or more in a given month an employer must report to the Department of Labor and Department of Health: (i) the number od days mandatory overtime was required; (ii) the number of employees that were required to remain on duty in overtime status; and (iii) the dates and times mandatory overtime was required. For any exception of 45 days or more in any consecutive 3-month period, the employer must file an explanation for why mandatory overtime was required and provide an estimate of when the employer intends to stop using mandatory overtime with the Department of Labor and Department of Health.
Q: Can a nurse work overtime voluntarily?	A: Yes, the law does not prohibit a nurse from voluntarily working overtime. A nurse may volunteer for overtime by agreeing to: Work a particular day or shift over and above his or her regularly scheduled work hours Be placed on an on-call roster Prescheduled on-call time under - A collective bargaining agreement - Other written contract - Agreement to work
Q: What if my contract or collective bargaining agreement has additional protections against the use of mandatory overtime?	A: Such provisions would still be in effect because the law cannot diminish or waive any rights of any nurse pursuant to any other: Law Regulation Collective bargaining agreement.
Q: What if my employer asked me to waive my rights under this law?	A: A health care employer may not use employee waivers of the protections afforded under Labor Law §167 or this Part as an alternative to compliance with such law or regulation. A health care employer who seeks such a waiver from a nurse will have violated the law.
Q: What can I do if I was required to work overtime but I do not believe my employer met the requirements of the law?	A: If you believe that your employer mandated overtime in violation of the law, you can file a Mandatory Overtime Complaint form. Get an electronic version of the form here, or you may call (888) 4-NYSDOL or (518) 457-9000 to obtain a hard copy. Submit the completed form by mail or fax to the address shown at the top of the form. A complaint must be made in good faith.
Q: Who can file a complaint?	A: A complaint may be filed by: One nurse A group of nurses The recognized collective bargaining representative of the nurses at a facility Please file a separate complaint form for each individual who is alleged to be mandated to work overtime in violation of the law.
Q: Can I file a mandatory overtime complaint if the suspected violation took place during an emergency?	A: Yes, the Department of Labor will investigate complaints related to mandatory overtime during an emergency in partnership with the Department of Health. The Department of Labor’s enforcement officer may investigate a complaint in consultation with the Department of Health and must give the employer notice of the complaint. The Department of Labor and Department of Health oversee an employer’s use of mandatory overtime during an emergency.
Q. Does my employer have to notify me regarding how to file a complaint?	A. Yes. The Department of Labor has developed a poster containing information for employees on filing a complaint related to mandatory overtime. It is available on our website here: English \| Spanish. Every covered health care employer must display the poster in a clearly visible location accessible to employees in the workplace.
Q. Who investigates a mandatory overtime complaint?	A: The Department of Labor has appointed an enforcement officer who is officially charged with investigating any complaint of mandatory overtime.
Q: What happens after I file a Mandatory Overtime Complaint?	A: The Department of Labor will conduct an investigation in consultation with the Department of Health. You will receive an acknowledgement of your complaint. We may contact you if we need further information. The Department of Labor will also contact the health care employer as part of its investigation. If we determine that the complaint is valid, the Department of Labor issue an order directing compliance to the employer particularly describing the alleged violation. A copy of the order will be provided to any employee who filed a complaint and their “authorized representative.
Q: Can the Department of Labor issue penalties for violations?	A: The Department of Labor may issue civil penalties for violations as follows: no more than $1000 for a first violation, $2000 for a second violation in 12 months and $3000 for a third or subsequent violation within 12 months. For a violation that occurred during an emergency, the Department of Labor may issue a maximum civil penalty of $500.
Q: Who can I contact if I have questions?	A: You may contact the Department of Labor’s Enforcement Officer or their representatives at (888) 4-NYSDOL or (518) 457-9000 or via email at LSMandatoryOT.

Mandatory Overtime for Nurses

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