The state Department of Labor (DOL) does not investigate overtime complaints by nurses in a consistent or timely basis, according to an audit released today by New York State Comptroller Thomas P. DiNapoli.

"Patients need care around the clock, and nurses are often required to stay and work extra hours," DiNapoli said. "Chronic overtime and longer shifts for nurses need to be watched closely by the state so patient care is not jeopardized, nurses are not overworked and employers are complying with the law. The Department of Labor needs to do a better job investigating complaints from nurses about working overtime to keep patients safe."

For the period of Jan. 1, 2015 to June 30, 2017, auditors examined whether DOL was adequately enforcing the law that imposes restrictions on the consecutive hours that can be worked by nurses in non-emergency situations. Under the law, if nurses feel their employers violated the law, they can file a complaint with DOL. Between Jan. 1, 2015 and May 23, 2017, DOL closed 186 cases regarding 540 complaints.

Auditors found DOL lacked effective policies and procedures for investigating complaints. This resulted in inconsistencies and anomalies in investigations and differing outcomes based on the same or similar sets of circumstances.

DiNapoli's auditors selected a sample of investigations to review and found in 128 of 207 complaints that DOL did not contact the complainants after the investigation was concluded. For 33 of 165 complaints about state agency facilities, DOL took the word of the facilities that no mandatory overtime occurred without any supporting documentation. In 10 of 23 cases, there was no record of DOL making a decision about the complaint.

DOL also does not have set time frames for investigating complaints. It is DOL's practice to combine complaints and investigate them together as a single case. Auditors found this practice resulted in significant delays in initiating and completing investigations, particularly related to state agencies. In a sample of cases reviewed, it took about 57 days before complaints about state agencies overtime practices were investigated compared to 42 days for private or local facilities. To complete an investigation, DOL averaged 351 days for state facilities and 138 days for private or local facilities.

Among several recommendations, auditors urged DOL to:

• Establish policies and procedures to ensure that nurse overtime complaints are investigated timely using consistent methods and application of the law;
• Improve its case management system so it can better track complaints and investigations in a more comprehensive manner; and
• Establish an outreach and education program to ensure that all covered employers are aware of the law and its requirements.

DOL officials did not agree with all of the auditors' conclusions and stated the department works closely with employee representatives and with other state agencies as part of its enforcement approach. Department officials indicated they had implemented a number of changes as a result of the audit. The full response is included in the audit.

Read the report or go to: http://www.osc.state.ny.us/audits/allaudits/093018/sga-2018-17s14.pdf

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