H. B. 2139


(By Delegates Hatfield, Hrutkay, Caputo and Manuel)
[Introduced January 13, 2003; referred to the
Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.]




A BILL to amend chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-f, relating to restricting mandatory overtime in certain health care facilities; providing for enforcement; providing certain provisions in agreements contrary to the restrictions are void; and providing criminal penalties.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-f, to read as follows:
ARTICLE 5F. OVERTIME RESTRICTIONS IN HOSPITALS AND NURSING HOMES.

§21-5F-1. Public policy.
It is declared to be the public policy of this state to establish a maximum workday and workweek for certain hourly wage health care facility employees, beyond which the employees cannot be required to perform overtime work, in order to safeguard their health, efficiency, and general well-being as well as the health and general well-being of the persons to whom these employees provide services. §21-5F-2. Definitions.
As used in this article:
"Employee" means an individual employed by a health care facility who is involved in direct patient care activities or clinical services and who receives an hourly wage.
"Employer" means an individual, partnership, association, corporation or person or group of persons acting directly or indirectly in the interest of a health care facility.
"Health care facility" means a facility licensed under the provisions of article five-b or five-c, chapter sixteen of this code, but excludes hospitals and nursing homes operated by the state or any agency of the state, and hospitals and nursing homes staffed, in whole or in part, by public employees. §21-5F-3. Certain mandatory overtime requirements void.
A requirement that an employee of a health care facility accept work in excess of an agreed to, predetermined scheduled work shift of eight, ten or twelve hours, not to exceed forty hours per week, except in the case of an unforeseen emergent circumstance when the overtime is required only as a last resort, is declared to be contrary to public policy and such a requirement contained in any contract, agreement or understanding executed after the effective date of this article is void.
§21-5F-4. Prohibition of mandatory overtime; acceptance voluntary; exception.

(a) Notwithstanding any provision of law to the contrary, no health care facility may require an employee to accept work in excess of an agreed to, predetermined scheduled work shift of eight, ten or twelve hours, not to exceed forty hours per week.
(b) The acceptance by any employee of work in excess of an agreed to, predetermined scheduled work shift of eight, ten or twelve hours, not to exceed forty hours per week is strictly voluntary on behalf of the employee and the refusal of any employee to accept the overtime work is not patient abandonment or grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the employee.
(c) The provisions of this section do not apply in the case of an unforeseen emergent circumstance when the overtime is required only as a last resort.
§21-5F-5. Enforcement; offenses and penalties.

(a) The commissioner of labor is charged with the enforcement of this article and is authorized to exercise the powers provided in section six, article five-c of this chapter to enforce the provisions of this article.
(b) No employer may discharge or in any manner discriminate against any employee because the employee has:
(1) Made complaint to the employer, or to the commissioner of labor, that the employee has not been treated by the employer in accordance with the provisions of this article;
(2) Instituted or is about to institute any civil action, or file any petition or criminal complaint against the employer for violating the provisions of this article; or
(3) Testified or is about to testify in any administrative proceeding, civil action or criminal action concerning an alleged violation of this article.
(c) Any employer violating subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty thousand dollars.


NOTE: The purpose of this bill is to generally prohibit mandatory overtime in hospitals and nursing homes.

This article is new; therefore, strike-throughs and underscoring have been omitted.