- Email: [email protected]
If you're not outraged, you're not paying attention
EDITORIAL
If You’re Not Outraged, You’re Not Paying Attention Gail Pisarcik Lenehan, RN, EdD, FAAN, Boston, Mass
J Emerg Nurs 2003;29:399-400. Copyright © 2003 by the Emergency Nurses Association. 0099-1767/2003 $30.00 + 0 doi:10.1067/men.2003.196
the criteria and definitions so nurses fall under both of those categories and thus would not be guaranteed overtime pay. For example, under the old rules, a “learned professional” was “someone who exercised discretion and independent judgment…which required knowledge of an advanced type in a field of science.” The proposed regulation eliminates “discretion and independent judgment” and simply requires a combination of intellectual instruction and work experience. In the same vein, the new standard defines an “administrative employee” as someone holding a “position of responsibility,” which would certainly pertain to nurses, so they would be exempt from being entitled to overtime. In a letter to the Department of Labor, the American Nurses Association (ANA) notes that “expanding the number of professional workers, such as registered nurses, who are exempt for the overtime protections, will lower the…cost of overtime work for...health care institutions. [This] will encourage the use of mandatory overtime as a staffing strategy…. ANA believes that the proposed regulations…would reclassify thousands of nurses who are currently entitled to overtime pay.” ENA, which has followed the issue closely from the beginning, joined with ANA and 8 other national nursing associations, representing almost a half million nurses, to strongly oppose these proposed changes and to lobby to exempt nurses from the new rules. ENA Executive Director Donna Nowakowski, MS, RN, CAE, explains it this way: “While these new rules wouldn’t prevent hospitals from paying overtime, they may codify and underscore the fact that it is not required, and, in effect, discourage the practice. Our health care system relies on the flexibility that overtime affords; nurses rely on the income. If hospitals are tempted by the short-term savings, it may ultimately be a
October 2003 29:5
JOURNAL OF EMERGENCY NURSING
As we go to press, there are 2 stories in the news with important implications for emergency nurses. The first headline reads: “Nation’s Nurses Lobby to Protect Overtime Pay.”1 Under proposed rule changes, new federal regulations could deny the right to overtime pay for anywhere from 640,000 to 8 million white-collar employees, nurses among them. Some background: The Fair Labor Standards Act (FLSA), passed in 1938, guarantees a 40-hour work week, and mandates overtime pay for nonsupervisory employees who work extra hours. The US Labor Department has the authority, under the FLSA, to write the “rules and regs” of this legislation, and it can change those rules after announcing the proposed changes and allowing a comment period. Like most issues, this one becomes more complicated upon closer inspection. Whether nurses are, or are not, included in those who are exempt from having to be paid overtime hinges in part on whether nurses are supervisory personnel or professionals as opposed to “labor.” Administrative and “learned professional” employees are not entitled to overtime. Unfortunately, the proposed new rules change
399
EDITORIAL/Lenehan
last straw, plunging the health care system into further crisis.” In fact, any impediment to nurses receiving overtime pay could, in turn, impede the profession from recruiting and retaining nurses—unthinkable in the face of the disastrous shortage of nurses currently looming. The President of the United States appoints and oversees federal agencies like the Labor Department, which, in turn, usually represent the values and agenda of that President. The Bush Administration will review comments (approximately 70,000 of them) on this proposed legislation and will issue the revised rules early in 2004. Nurses and others will surely be watching. As this goes to press, 42 Democrats are drafting legislation to ensure guarantees of continued overtime pay. It seems reasonable, during the year leading up to the presidential election, for nurses to ask whether a candidate is concerned about workers’ hard earned benefits, and whether he will see that the federal agencies under his control work to protect those benefits. The second headline reads: “Right to Refuse Work Becomes Another SARS Issue.”2 Lucy Smith, a dialysis nurse at a Toronto hospital and former emergency nurse, with 17 years experience, was “drafted” into a special SARS team at her hospital. They reportedly needed 65 staff members in addition to the 100 staff who volunteered. Smith refused, in light of concerns, not for herself, but for her 3 children and her immunocompromised mother who was recovering from a kidney transplant. According to newspaper reports, she felt measures in place to protect her, and, indirectly, her family, were inadequate. When Smith said she would not join the team, her head nurse reportedly told her not to report the next day for her regular shift. This, despite the fact that, under Ontario’s Occupational Health and Safety Act, a person can refuse to work when the “physical condition of the workplace…is likely to endanger,” similar to US federal rules and regulations. “Many nurses in Toronto could theoretically refuse to work because they haven’t got masks that fit,” said the Ontario Nurses Association President. Observing that the new safety protocols are not enough, she emphasized the uncertainties, saying: “We’re making this up as we go along.” A Canadian Medical Association official hedged: “…hopefully, there will always be enough volunteers to do the frontline work,” but the Director of the University of Toronto Joint Centre for
400
Bioethics put things in a proper context, saying: “[There is a] threshold beyond which health care workers aren’t obliged to take personal risks. We don’t expect firefighters to jump into a burning pit….” Canada is in the midst of a crushing nursing shortage. In fact, after widespread cost-cutting layoffs of full-time nurses in the 1990s, it is widely reported that approximately 15% of our Canadian colleagues work part time at more than one hospital in order to piece together a living. This, of course, now constitutes a risk of spreading the SARS virus from one hospital to another. Against this backdrop, it is hard to imagine that a hospital would sacrifice a highly skilled, veteran specialty nurse such as Ms. Smith. Canadian officials should be protecting nurses, not eliminating them. But sadly, in response to a call from this Journal, a hospital official conceded that Ms. Smith was no longer working at the hospital. In addition to volunteers, the official said a “few more” nurses were “asked to serve” on the SARS response team at the hospital. As for our questions about our nurse colleague, she “could not discuss” her. Ms. Smith was “a Human Resource issue.” Toronto nurses have already shouldered the heaviest burden of the SARS crisis. They have been through hospital “lock downs,” they have labored in full personal protective equipment, hot, uncomfortable, and unable to breathe. They have cared for colleagues fighting for their lives; they have been shunned by those afraid of contagions; and then, finally, they have been ignored, for example,3 when they sounded the alarm prior to the second SARS outbreak in late May. Two nurses have died of SARS. Lucy Smith, and every nurse, has a right to be adequately protected and to be concerned, not just about their family’s well being, but their own as well. This case raises thorny issues that need to be held up in the light of day. President Bush remarked recently, in response to a question about our national deficit, that our troops in Iraq deserve the best equipment. So do nurses. REFERENCES 1. Lewis DE. Nation’s nurses lobby to protect overtime pay. The Boston Globe 2003 July 10. 2. Sibbald B. Right to refuse work becomes another SARS issue. CMAJ 2003;169:141. 3. Cherney E, Heinzl M. Toronto nurses claim warnings weren’t heeded in SARS sequel. The Wall Street Journal 2003 May 30.
JOURNAL OF EMERGENCY NURSING
29:5 October 2003
If You’re Not Outraged, You’re Not Paying Attention Gail Pisarcik Lenehan, RN, EdD, FAAN, Boston, Mass
J Emerg Nurs 2003;29:399-400. Copyright © 2003 by the Emergency Nurses Association. 0099-1767/2003 $30.00 + 0 doi:10.1067/men.2003.196
the criteria and definitions so nurses fall under both of those categories and thus would not be guaranteed overtime pay. For example, under the old rules, a “learned professional” was “someone who exercised discretion and independent judgment…which required knowledge of an advanced type in a field of science.” The proposed regulation eliminates “discretion and independent judgment” and simply requires a combination of intellectual instruction and work experience. In the same vein, the new standard defines an “administrative employee” as someone holding a “position of responsibility,” which would certainly pertain to nurses, so they would be exempt from being entitled to overtime. In a letter to the Department of Labor, the American Nurses Association (ANA) notes that “expanding the number of professional workers, such as registered nurses, who are exempt for the overtime protections, will lower the…cost of overtime work for...health care institutions. [This] will encourage the use of mandatory overtime as a staffing strategy…. ANA believes that the proposed regulations…would reclassify thousands of nurses who are currently entitled to overtime pay.” ENA, which has followed the issue closely from the beginning, joined with ANA and 8 other national nursing associations, representing almost a half million nurses, to strongly oppose these proposed changes and to lobby to exempt nurses from the new rules. ENA Executive Director Donna Nowakowski, MS, RN, CAE, explains it this way: “While these new rules wouldn’t prevent hospitals from paying overtime, they may codify and underscore the fact that it is not required, and, in effect, discourage the practice. Our health care system relies on the flexibility that overtime affords; nurses rely on the income. If hospitals are tempted by the short-term savings, it may ultimately be a
October 2003 29:5
JOURNAL OF EMERGENCY NURSING
As we go to press, there are 2 stories in the news with important implications for emergency nurses. The first headline reads: “Nation’s Nurses Lobby to Protect Overtime Pay.”1 Under proposed rule changes, new federal regulations could deny the right to overtime pay for anywhere from 640,000 to 8 million white-collar employees, nurses among them. Some background: The Fair Labor Standards Act (FLSA), passed in 1938, guarantees a 40-hour work week, and mandates overtime pay for nonsupervisory employees who work extra hours. The US Labor Department has the authority, under the FLSA, to write the “rules and regs” of this legislation, and it can change those rules after announcing the proposed changes and allowing a comment period. Like most issues, this one becomes more complicated upon closer inspection. Whether nurses are, or are not, included in those who are exempt from having to be paid overtime hinges in part on whether nurses are supervisory personnel or professionals as opposed to “labor.” Administrative and “learned professional” employees are not entitled to overtime. Unfortunately, the proposed new rules change
399
EDITORIAL/Lenehan
last straw, plunging the health care system into further crisis.” In fact, any impediment to nurses receiving overtime pay could, in turn, impede the profession from recruiting and retaining nurses—unthinkable in the face of the disastrous shortage of nurses currently looming. The President of the United States appoints and oversees federal agencies like the Labor Department, which, in turn, usually represent the values and agenda of that President. The Bush Administration will review comments (approximately 70,000 of them) on this proposed legislation and will issue the revised rules early in 2004. Nurses and others will surely be watching. As this goes to press, 42 Democrats are drafting legislation to ensure guarantees of continued overtime pay. It seems reasonable, during the year leading up to the presidential election, for nurses to ask whether a candidate is concerned about workers’ hard earned benefits, and whether he will see that the federal agencies under his control work to protect those benefits. The second headline reads: “Right to Refuse Work Becomes Another SARS Issue.”2 Lucy Smith, a dialysis nurse at a Toronto hospital and former emergency nurse, with 17 years experience, was “drafted” into a special SARS team at her hospital. They reportedly needed 65 staff members in addition to the 100 staff who volunteered. Smith refused, in light of concerns, not for herself, but for her 3 children and her immunocompromised mother who was recovering from a kidney transplant. According to newspaper reports, she felt measures in place to protect her, and, indirectly, her family, were inadequate. When Smith said she would not join the team, her head nurse reportedly told her not to report the next day for her regular shift. This, despite the fact that, under Ontario’s Occupational Health and Safety Act, a person can refuse to work when the “physical condition of the workplace…is likely to endanger,” similar to US federal rules and regulations. “Many nurses in Toronto could theoretically refuse to work because they haven’t got masks that fit,” said the Ontario Nurses Association President. Observing that the new safety protocols are not enough, she emphasized the uncertainties, saying: “We’re making this up as we go along.” A Canadian Medical Association official hedged: “…hopefully, there will always be enough volunteers to do the frontline work,” but the Director of the University of Toronto Joint Centre for
400
Bioethics put things in a proper context, saying: “[There is a] threshold beyond which health care workers aren’t obliged to take personal risks. We don’t expect firefighters to jump into a burning pit….” Canada is in the midst of a crushing nursing shortage. In fact, after widespread cost-cutting layoffs of full-time nurses in the 1990s, it is widely reported that approximately 15% of our Canadian colleagues work part time at more than one hospital in order to piece together a living. This, of course, now constitutes a risk of spreading the SARS virus from one hospital to another. Against this backdrop, it is hard to imagine that a hospital would sacrifice a highly skilled, veteran specialty nurse such as Ms. Smith. Canadian officials should be protecting nurses, not eliminating them. But sadly, in response to a call from this Journal, a hospital official conceded that Ms. Smith was no longer working at the hospital. In addition to volunteers, the official said a “few more” nurses were “asked to serve” on the SARS response team at the hospital. As for our questions about our nurse colleague, she “could not discuss” her. Ms. Smith was “a Human Resource issue.” Toronto nurses have already shouldered the heaviest burden of the SARS crisis. They have been through hospital “lock downs,” they have labored in full personal protective equipment, hot, uncomfortable, and unable to breathe. They have cared for colleagues fighting for their lives; they have been shunned by those afraid of contagions; and then, finally, they have been ignored, for example,3 when they sounded the alarm prior to the second SARS outbreak in late May. Two nurses have died of SARS. Lucy Smith, and every nurse, has a right to be adequately protected and to be concerned, not just about their family’s well being, but their own as well. This case raises thorny issues that need to be held up in the light of day. President Bush remarked recently, in response to a question about our national deficit, that our troops in Iraq deserve the best equipment. So do nurses. REFERENCES 1. Lewis DE. Nation’s nurses lobby to protect overtime pay. The Boston Globe 2003 July 10. 2. Sibbald B. Right to refuse work becomes another SARS issue. CMAJ 2003;169:141. 3. Cherney E, Heinzl M. Toronto nurses claim warnings weren’t heeded in SARS sequel. The Wall Street Journal 2003 May 30.
JOURNAL OF EMERGENCY NURSING
29:5 October 2003