Senate Bill No. 78
(By Senators Hunter, Dempsey and Weeks)
[Introduced January 9, 2003; referred to the Committee on Labor;
and then to the Committee on 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 relating to prohibiting
health care workers mandatory overtime.
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
ARTICLE 5F. OVERTIME RESTRICTIONS IN HEALTH CARE FACILITIES.
§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
As used in this article:
"Critical access hospital" means a hospital that has been
designated a critical access hospital for rural health care
initiative purposes as defined in 42 U.S.C. §1395 (18).
"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, including, but
not limited to, employees of emergency rooms, operating rooms,
pediatric units and critical care units .
"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 critical access hospitals, nursing homes,
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;
(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
NOTE: The purpose of this bill is to generally prohibit
mandatory overtime for employees in certain health care facilities.
This article is new; therefore, strike-throughs and
underscoring have been omitted.