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.

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.

The final regulations governing mandatory nurse overtime became effective October 12, 2011. 

You can view this helpful PowerPoint.

File a Complaint

You may file a complaint with the Department of Labor if:

You are a nurse (RN/LPN)


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:

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 state
A political subdivision
A public corporation
Examples include (but are not limited to):
Nursing homes
Outpatient clinics
Comprehensive rehabilitation hospitals
Residential health care facilities
Residential drug and alcohol treatment facilities
Adult day health care programs
Diagnostic centers

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 normally 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:

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 patient care emergency, as determined by the health care employer (only as a last resort after implementing the Nurse Coverage Plan)

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 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: 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:

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.
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
File a separate complaint form for each individual who is mandated to work overtime in violation of the law.

Q: What happens after I file a Mandatory Overtime Complaint? A: The Division of Labor Standards will conduct an investigation. You will receive an acknowledgement of your complaint. We may contact you if we need further information.  DOL will also contact the health care employer as part of its investigation. If we determine that the complaint is valid, DOL will send a violation notice to the employer asking the employer to cease and desist from the use of mandatory overtime.
Q: Who can I contact if I have questions? A: You may contact the Division of Labor Standards at (888) 4-NYSDOL or (518) 457-9000 or via email at LSMandatoryOT