PROBLEMS AND ISSUES IN MANDATORY OVERTIME

PROBLEMS AND ISSUES IN MANDATORY OVERTIME

By: ANN GRETHEL R. TAN, RN

Mandatory overtime is one of the many workplace issues that may be contributing to nurses leaving the workforce. Mandatory overtime is when employers require employees to work in excess of 40 hours per workweek, even if employees don't want to. Subsequently, employees often refer to it as forced mandatory overtime or simply forced overtime.

Mandatory overtime may cause or lead to increased stress on the job, less patient comfort and mental and physical fatigue that can contribute to errors and "near-misses" with medications and case-related procedures. The practice of mandatory overtime ignores the responsibilities nurses may have at home with children, other family members, or other obligations. Being forced into excessive overtime can cause an exhausted RN to practice unsafe patient care, jeopardizing her nursing licensure status.

Impact is felt at the level of the bedside nurse in three major areas identified through current literature: medication errors, quality patient care, and nurses' legal liability.

THE LABOR CODE OF THE PHILIPPINES

Stands as the law governing employment practices and labor relations in the Philippines. It was enacted on Labor day of 1974 by President Ferdinand Marcos, in the exercise of his then extant legislative powers.

Features: The Labor Code prescribes the rules for hiring and

termination of private employees; the conditions of work including maximum work hours and overtime; employee benefits such as holiday pay, thirteenth month pay and retirement pay; and the guidelines in the organization and membership in labor unions as well as in collective bargaining.

The Labor Code contains several provisions which are beneficial to labor. It prohibits termination from employment of Private employees except for just or authorized causes as prescribed in Article 282 to 284 of the Code.

The Department of Labor and Employment is mandated to protect the rights of workers and promote their welfare, as enshrined in the 1987 Constitution and in the 1974 Labor Code of the Philippines. Books III and IV of the Labor Code establish the minimum standards with regard to:

(i) wages and other monetary benefits, working conditions (ii) medical and dental benefits

(iii) occupational safety and health

ARTICLE 82. Coverage All employees in all establishments and

undertakings whether for profit or not are entitled to overtime pay for work rendered beyond eight (8) hours. But this does not apply to managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results. Employees in the government are also entitled to overtime pay but they are governed by Civil Service laws and rules. Only employees in the private sector are covered by the Labor Code.

ARTICLE 83. Normal hours of work

For health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100), their normal hours of work are eight (8) hours a day, for five (5) days a week, exclusive of time for meals.

ARTICLE 84. Hours worked. Hours worked shall include (a) all

time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.

ARTICLE 85. Meal periods

Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.

ARTICLE 86. Night shift differential

Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten oclock in the evening and six oclock in the morning.

ARTICLE 87. Overtime work Work may be performed beyond eight (8)

hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.

Can an employee be compelled to render overtime? When an employee spends additional time for

work, he puts in more physical and mental effort. It is but proper that he be compensated for that. He is also delayed in going home and cannot spend time with family and enjoy the comforts of his home. As such, the law discourages employers to require employees to work overtime. Generally, he cannot compel the employee to render overtime, except in certain instances to wit (Article 89)

ARTICLE 89. Emergency overtime work

1) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;

2) When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities;

3) When there is urgent work to be performed on machineries, installations, or equipment, in order to avoid serious loss or damage to the employer

4) When the work is necessary to prevent loss or damage to perishable goods;

5) When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer;

6) When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

If the employee who is required to work overtime is a professional, such as a nurse, she may be required to work overtime after considering:

The opportunity to consult supervision

The availability of relief from the oncoming shift

Possible risk to the patient

Can an employee insist on working overtime?

The employee cannot compel his employer to allow him to work overtime when the circumstances does not require him to do so as when there is actually no work to be performed.

ARTICLE 88. Under time not offset by overtime Under time work on any particular day

shall not be offset by overtime work on any other day. The reason behind this is fairness. If the employee works for less than eight hours, he will be paid only for the corresponding number of hours he had actually worked. If on another day he works beyond the maximum hours, he should be given additional compensation.

Non-payment of overtime pay is not only illegal but also contrary to public policy. The employer cannot use the overtime to offset the under time because payment of overtime pay is mandatory. However, he may either deduct the under time from the wage of the employee, or through other approaches. Although these methods are not provided by law, these may be found in company policies or established by company practices.

Employees' Refusal of Overtime

Management has the right to determine whether overtime is necessary, and, in the absence of contract language to the contrary, employees may be asked to work a reasonable amount of overtime. Failure to work required overtime may lead to discharge.

Sometimes, however, employees cannot be discharged for refusing to work overtime. For instance, an employee cannot be required to work an unreasonable amount of overtime. A temporarily disabled employee cannot be discharged for refusing to work overtime if the employer did not make a reasonable accommodation of the employee's disability.

Alternatives to Overtime:1. Solicit volunteers for overtime.2. Rotate the overtime so that the same

employees do not have to work extra hours every week.

3. Transfer employees temporarily to the understaffed area.

4. Bring in part-time or temporary employees.

Give Plenty of Notice As a final point, if you do have to

institute a mandatory overtime requirement, make sure to explain the policy to your employees. In particular, update handbooks and job descriptions to cover the possibility of overtime. In addition, give affected employees as much advance notice as possible prior to the scheduled overtime. This way, even if they do not want the extra time, at least they will be able to plan for it.

The mandatory overtime dilemma like so many in nursing, comes down to a conflict between costs, availability of resources and safety states:

Mandatory overtime is a lightning rod issue for both nurses and hospital administrators. Worried that there wont be enough nurses on the floor to care for all the patients, administrators feel they must compel nurses to stay late and work an extra shift. On the flip side, nurses contend that they get so tired from working extra that they make potentially dangerous mistakes.