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BusinessColumnistsCarrie Mason-Draffen

Hospital may be improperly requiring nurse to work overtime

A hospital nurse wants to know if mandatory

A hospital nurse wants to know if mandatory overtime for nurses is illegal. The employer schedules two late days a month for the whole staff. Photo Credit: iStock

DEAR CARRIE: I work as a registered nurse at a local hospital. My co-workers and I thought that mandatory overtime for nurses was illegal. Despite that, our employer schedules two late days a month for each of us. When extra help is needed, we have to take turns working those extra days. We believe this amounts to scheduled mandatory overtime. We called the state Labor Department, which told us to file a formal complaint. But we are afraid of reprisals. Are we right that overtime for nurses is illegal? -- OT for RNs Legal?

DEAR OT: You're right, but with one big exception. While nurses generally can't be forced to work overtime, mandatory overtime is allowed when their employer is facing "a patient-care emergency." A patient-care emergency, state law says, is one that is "unforeseen and requires the continued presence of the nurse to provide safe patient care."

Even then, state law requires that an employer make a good-faith effort to seek out volunteers.

An employer cannot declare an emergency if its shortage of nurses for a shift results from routine "typical staffing patterns, typical levels of staff absenteeism or time off typically approved by the employer for vacation, holidays, sick leave and personal leave," the law says.

Based on the information you provided, your employer may be illegally building in overtime to cover routine staffing shortage, and perhaps you should file a complaint, which the state Labor Department will keep anonymous. For the record, while overtime is generally defined as anything over 40 hours in a workweek, for nurses the definition is time "worked over and above the predetermined and regularly scheduled work hours a nurse has agreed to work."

Go to for more information on New York State laws regarding nurses and overtime.

DEAR CARRIE: My granddaughter works for a day care that closes a week for maintenance. The workers are told that they have to take the week off without pay. My granddaughter is an hourly worker. She would like to do some work during the shutdown, but the day care doesn't allow it. Is it legal for her employer to deprive her of income for a week? -- Lost Wages

DEAR LOST: Yes, it's legal -- even if it may be inconvenient and seem unfair to employees.

Your question wades into the employment-at-will doctrine, which essentially says that those not covered by a union contract serve at the pleasure of the company. And that includes hours that employees work.

"The concept of at-will employment means that an employer allows or dictates whether and when someone can work," said Irv Miljoner, who heads the U.S. Labor Department's Long Island office.

New York, like many other states, is an employment-at-will state. Another point worth mentioning: Hourly workers have to be paid only when they work. Since your granddaughter won't work during the closure, she doesn't have to be paid.

If she were a manager and did any work during the temporary layoff, she would have to be paid for the whole week. Managers fall into the exempt category. They are exempt from overtime and minimum wage, but they have to be paid at least $656.25 a week in New York for the company to maintain that exemption. And when a business closes for an extended period, if the exempt employee does no work during that time, he or she doesn't have to be paid.

One point you didn't raise: unemployment benefits. Tell your granddaughter to apply as soon as possible for benefits for that lost week.

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