Healthcare Worker Rights
Healthcare Workers’ Rights Lawyer
It’s 5:20 and you’re up an at ‘em. You get a workout in quick before you head off to work. Your shift starts at 7:00. But, you’re there at 6:55 to glean whatever information you can from the previous shift. You got into the healthcare industry because you wanted to help other people. But, you soon realized your employer wanted to help their profits and not their people…including you. You’re overworked. You’re underpaid. Your patients suffer. You want to protect the patients. But, what is there to protect you? If you’re a California healthcare worker, you have rights. Make sure you know them.
No Harassment or Discrimination Against Healthcare Workers
Like all employees in California, you have the right to be free from harassment, or discrimination based on your personal characteristics like age, physical or mental disability, gender, genetic information, race, religion, sex, or sexual orientation. Your employer has a duty to prevent harassment in the workplace. The protection extends to harassment from supervisors, co-workers and even patients and vendors. You are also entitled to safe, ergonomic workspaces. You are also entitled to workers’ compensation if you get hurt on the job.
Healthcare Whistleblower Protections
The State of California wanted to encourage patients, nurses, members of medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions. Health and Safety Code Section 1278.5 protects whistleblowers in the health care industry by prohibiting a health facility from retaliating against an employee for complaining about the quality of patient care and the services provided by the facility.
A health facility may not discriminate or retaliate "in any manner" against a patient, employee, member of the medical staff, or any other health care worker because that person has:
Presented a grievance, complaint, or report to:
The facility;
An entity or agency responsible for accrediting or evaluating the facility;
The facility's medical staff; or
Any other governmental entity; or
Initiated, participated in, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility carried out by (1) an entity or agency responsible for accrediting or evaluating the facility, (2) its medical staff, or (3) a governmental entity.
This prohibition also extends to an entity that owns or operates a health facility or that owns or operates any other health facility. To constitute protected conduct, the grievance, complaint, or report must actually be "presented" to one of the listed entities or persons. It can’t just be grumbled in the hall. Discrimination or retaliation in this context includes discharge, demotion, suspension, any unfavorable changes in the terms, conditions, or privileges of employment, or the threat of any of these actions.
Health and Safety Code Section 1278.5(i) states that a "'health facility' means any facility defined under this chapter,including, but not limited to, the facility's administrative personnel, employees, boards, and committees of the board, and medical staff." A "health facility" is defined generally as
“a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer.”
There is a rebuttable presumption of unlawful retaliation if the employee establishes:
"Responsible staff" at the health facility or the health facility owner or operator knew of the employee's protected conduct; and
The adverse employment action occurred within 120 days of the filing of the grievance or complaint.
To state a cause of action under Health and Safety Code Section 1278.5, the employee must allege facts showing that
He or she engaged in protected activity under the statute;
He or she was subject to an adverse employment action; and
There was a causal link between the two.
Employees. An employee who has been discriminated against in violation of Health and Safety Code Section 1278.5 is entitled to:
Reinstatement;
Lost wages and benefits caused by the employer’s conduct;
Legal costs associated with pursuing a claim; and
Any remedy that the court deems appropriate under chapter 2 of the Health and Safety Code (Health and Safety Code Sections 1250–1339.59) or "any other applicable provision of statutory or common law."
Health care workers. A health care worker who has been discriminated against in violation of Health and Safety Code Section 1278.5 is entitled to:
Lost income;
Legal costs associated with pursuing a claim; and
Any remedy that the court deems appropriate or "any other applicable provision of statutory or common law."
Member of medical staff. A member of the medical staff who has been discriminated against in violation of Health and Safety Code Section 1278.5 is entitled to:
Reinstatement;
Lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility, the entity that owns or operates a health facility, or any other health facility that is owned or operated by that entity;
Legal costs associated with pursuing the case; and
Any remedy that the court deems appropriate or "any other applicable provision of statutory or common law."
If you have been retaliated against because you complained about unsafe patient care or conditions, you have rights and you may be entitled to damages.
In addition to Health and Safety Code Section 1278.5, healthcare workers are also protected by Labor Code Section 1102.5 when it comes to making complaints about illegal, unethical, or unsafe conditions.
Healthcare Workers Wage and Hour Laws
California has some unique protections for healthcare workers. California employees are entitled to at least the minimum wage for all hours worked. Most California employees are entitled to at least 1.5 times their regular rate of pay for all hours worked in excess of 8 in a day, or 40 in a week. Most California employees are also entitled to at least 2 times their regular rate of pay for all hours worked in excess of 12 in a day.
Employers in the health care industry may institute a regularly scheduled alternative workweek (subject to specific election procedures, and a regular schedule) that includes workdays exceeding 10 hours, but not more than 12 hours, within a 40-hour workweek without the payment of overtime compensation, provided that:
· An employee who works beyond 12 hours in a workday must be compensated at double the employee's regular rate of pay for all hours in excess of 12;
· An employee who works more than 40 hours in a workweek must be compensated at one and one-half times the employee's regular rate of pay for all hours over 40 in the workweek;
· Any alternative workweek agreement must provide for at least 4 hours of work in any shift;
· The same overtime standards must apply to employees who are temporarily assigned to a work unit covered by this arrangement; and
· The employer must make a reasonable effort to find another work assignment for any employee participating in the vote authorizing a schedule with 12-hour shifts who is unable to work the 12-hour shifts. This requirement applies to employers operating or providing personnel to a licensed hospital.
No health care employee assigned to work a 12-hour shift may be required to work more than 12 hours in any 24-hour period unless the chief nursing officer or authorized executive declares that
· There exists a "health care emergency," which is an unpredictable or unavoidable occurrence at unscheduled intervals relating to health care delivery, requiring immediate action;
· All reasonable steps have been taken to provide required staffing; and
· Considering overall operational status needs, continued overtime is necessary to provide required staffing.
In addition, no health care employee may be required to work more than 16 hours in a 24-hour period unless by voluntary mutual agreement of the employee and the employer. An employee who works 24 consecutive hours must have at least 8 consecutive hours off-duty immediately following the 24 hours of work.
However, a health care employee may be required to work up to 13 hours in a 24-hour period if the employee scheduled to relieve the subject employee does not report for duty and does not inform the employer more than 2 hours in advance of that scheduled shift that he or she will not be appearing for duty as scheduled.
Most California employees are entitled to a paid 10-minute break for every 4 hours they work, and a 30-minute unpaid break for every five hours they work. But, the California Supreme Court has held that health care employees may lawfully waive second meal periods in shifts exceeding 12 hours and that the Industrial Welfare Commission (IWC) wage order authorizing health care workers to waive their second meal periods on shifts exceeding 12 hours did not violate the Labor Code.
An employee may not sign an on-duty meal period agreement merely because the employee wishes for his or her convenience to work through meals and leave earlier at the end of the day. Only if the nature of the work requires an on-duty meal period can an on-duty meal period agreement be valid. Employers that fail to provide an employee a meal period must pay the employee 1 hour's pay at the regular rate of compensation for each day that any number of meal periods is not provided.
California provides an exemption from daily overtime for ambulance drivers and attendants who have agreed in writing to exclude from 24-hour shifts up to three 1-hour meal periods and an uninterrupted sleep period of 8 hours. This partial overtime exemption does not affect or limit the compensability of meal periods, it only provides a partial overtime exemption for employees who work such a schedule. Similarly, the exception that allows certain employees engaged in the care of children and the elderly, blind, and developmentally disabled to work on-duty meal periods does not alter the compensability of on-duty meal periods.
Despite protections, California Healthcare Workers’ Rights are all too often violated. Healthcare workers become the victims of harassment, discrimination, whistleblower retaliation, and wage theft. If you are a California Healthcare Worker, you have rights. If your rights are being violated, you need an experienced healthcare workers’ rights attorney to represent you. Employment attorney John McCarthy is recognized throughout California for his work representing healthcare workers who have been wronged in the workplace. If you think your rights have been violated, you should fill out our free, confidential, case evaluation form today. The form goes straight to John’s inbox. He typically responds to every form within 24 hours to schedule a consultation, refer you to another lawyer, or help you understand your rights and take action yourself. You have to take care of yourself if you ever hope to take care of others, right?