Act 102 Mandatory Overtime Law

Frequently Asked Questions

Q.          What is Act 102?

A.          A Pennsylvania Law which limits mandatory overtime for direct patient care givers. It says: “A healthcare facility may not require an employee to work in excess of an agreed to predetermined and regularly scheduled daily work shift.”

Q.          Does Act 102 limit all mandatory overtime? 

A.          No. There are exceptions which are discussed below.

Q.          In what cases can an employee be mandated to work overtime? 

A.          There is an exception which applies when an employee is required to work overtime to complete a patient care procedure in progress if the absence of the employee could have an adverse effect on the patient. In addition, mandatory overtime can still be required for“unforeseeable emergent circumstances” which is defined as any of the following:

An unforeseeable declared national, state, or municipal emergency;

A highly unusual or extraordinary event which is unpredictable or unavoidable and which substantially affects the provision of healthcare services or increases the need for health care services including:

• An act of terrorism;

• A natural disaster;

• A widespread disease outbreak;

Unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer, and which would significantly affect patient safety.

Q.          What if the employer consistently staffs under the required number to efficiently and safely operate the facility? 

A.          The Act specifically provides that unexpected absences do not include vacancies that arise as a result of chronic short staffing.

Q.          Can an employee be disciplined for failure to work beyond an agreed work shift? 

A.          Not unless the mandate to work overtime falls within one of the exceptions. The law states: “A healthcare facility may not require an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift.”

Q.          Does Act 102 apply to all employees who work in public and private healthcare facilities?

A.          No. The Act only applies to direct patient care employees who receive an hourly wage and are classified as non-supervisory employees. Please note that the Act does not apply to any worker “involved in environmental services, clerical, maintenance, food service or other job classifications] not involved in direct patient care and clinical care services.” 

Q.          Is there any violation of Act 102, if my predetermined work shift is 10 or 12 hours?

A.          The Act does not prohibit a regularly scheduled work shift in excess of 8 hours. If the predetermined shift is twelve (12) hours, there is no violation of the Act. The focus is on mandatory overtime, not length  of work shift.

Q.          Does the law prohibit employees from working in excess of an 8 hour shift? 

A.          No. The Act does not prohibit anyone from volunteering to work additional hours.

Q.          Does Act 102 apply to every type of medical care setting including acute care, rehabilitation, psychiatric hospitals, nursing homes, ambulatory surgical facilities, and state health facilities? 

A.          Yes. It applies to both public and private sector employers in the Commonwealth of Pennsylvania and makes no distinction between those operations which are for profit or not for profit.

Q.          Can an employer use “on call time” to circumvent Act 102? 

A.          No. An employer is required, by Act 102 to make “reasonable attempts by an employer at efforts to obtain other staffing” such as:

• seeking persons to volunteer from all qualified staff who are working;

• contacting all qualified employees who have made themselves available for overtime;

• using per diem staff; or

• using temporary staffing agencies.

Q.          Are there any restrictions on how an employer can assign mandatory overtime?

A.          Yes.  They are as follows:

The assignment of additional hours can only be used as a last resort;

The healthcare facility or employer must exhaust “reasonable attempts” to obtain other staffing;

The healthcare facility or employer must provide the employee up to one (1) hour to arrange for the care of the employee’s minor child, elderly or disabled family member.

Q.          What if I’m required to work mandatory overtime, because of one of the exceptions, and it is getting close to my next scheduled work shift? 

A.          Any employee working 12 or more consecutive hours will be entitled to at least ten (10) consecutive hours of off duty time immediately after they worked overtime.

Q.          Is the employee required to take ten (10) consecutive hours of off duty time after working 12 or more consecutive hours? 

A.          No.  It is the employee’s option.

Q.          If the employee opts to take ten (10) consecutive hours of off duty time after working 12 or more consecutive hours and that time overlaps a regularly scheduled shift, will the employee be paid for the hours not worked due to the voluntary off duty time? 

A.          No.  If time is missed from a regularly scheduled shift due to those circumstances, the employee will not be paid for those hours.

Q.          What can an employee do if the employer violates the Act? 

A.          The Department of Labor and Industry is to promulgate regulations to enforce the Act. However, the Department has 18 months from the effective date of July 1, 2009, to enact these regulations and the Department has not drafted any regulations to date. Until those regulations are adopted, violations can be reported to The Pennsylvania Department of Labor and Industry Bureau of Labor Law Compliance, which enforces the Act and may impose fines ranging up to $1,000 for each violation.

Q.        Can I file a grievance if the employer violates Act 102?

A.        Only if the violation is also a violation of the employee’s collective bargaining agreement.