by Andrew Walden (originally published Nov 16, 2014)

Hawaii public hospital workers earn less but cost more than their private sector counterparts.  How is that possible?  The answer comes in an overlooked section of the State Legislative Investigative Committee Report into the Hawaii State Hospital.  Here it is from page 50-56 of the HSH Final Report, October, 2014:

c. Opportunities for Employees to Abuse Sick Leave and Overtime Benefits

Overtime shifts become available when the nurse staffing ratios require additional staff to care for a high patient census, meet the clinical needs of patients, or fill in for employees who are on sick leave or vacation. As state employees, each employee earns 14 hours of paid sick leave per month that can be accumulated. Furthermore, employees who are civil servants or included in collective bargaining will earn overtime compensation for shifts in which those employees are not scheduled to work.179

The Investigative Committee finds that the financial incentives of overtime combined with the employee benefits of paid sick leave creates an opportunity for employees to abuse these benefits for financial gain. When the Investigative Committee asked Ms. Guest whether she felt that the overtime system is being abused, she answered, "Yes, absolutely."180 However, the Hospital has done little to control the risks of overtime and sick leave abuse.

Figures 3.9 to 3.11 illustrate different ways employees could combine the use of their overtime and paid sick leave benefits to earn more compensation and, in some instances, work less than a 40-hour work week. These scenarios are based on examples provided and observations made by Ms. Ono 181 and are not intended to implicate or represent an actual employee. Please note that "Reg. Shift" means a regular scheduled shift and "OT Shift" means an overtime shift.

Figure 3.9 Employee A Using a Combination of Overtime and Sick Leave

Note: Days shaded gray indicate days Employee A is not present at work.

In the scenario illustrated in Figure 3.9, Employee A's regular work schedule is a 40-hour work week with two days off. If Employee A takes sick leave benefits during two regularly scheduled shifts and works overtime shifts during two regularly scheduled days off, Employee A will still perform a 40-hour work week, but be compensated more due to the two overtime shifts performed that week.

Figure 3.10
Employee B Using a Combination of Overtime and Sick Leave

Note: Days shaded gray indicate days Employee B is not present at work.

In the scenario illustrated in Figure 3.10, Employee B's regular work schedule is a 40-hour work week with two days off.  If Employee B takes sick leave benefits during the five regularly scheduled shifts and works overtime shifts during the two regularly scheduled days off, Employee B will perform a 16-hour work week and be compensated for the five days of sick leave and two days of overtime. Thus, Employee B will receive greater compensation for working significantly fewer hours than Employee B's regular work schedule.

The Investigative Committee notes that an employee is required to submit a note from the employee's doctor for five or more consecutive days of paid sick leave, but is allowed to take five or more nonconsecutive days of paid sick leave or four or fewer consecutive days of paid sick leave as long as the employee has accumulated enough paid sick leave hours.182 In the scenario illustrated in Figure 3.10, a doctor's note is not required because Employee B's five total days of paid sick leave are composed of three consecutive days and two consecutive days with an overtime shift between the two periods of sick leave. The Investigative Committee further notes that Employee B's five days of paid sick leave create five additional opportunities for other employees to perform an overtime shift if these employees are eligible and available.

Figure 3.11
Employee C Cooperating with Employee D to Use Employee D's Sick Leave for an Overtime Shift

Note: Shifts shaded gray indicate shifts for which Employee C or D are not scheduled.

In the scenario illustrated in Figure 3.11, Employee C is scheduled to work the evening shift from 3:00 to 11:00 p.m. and Employee D is scheduled to work the night shift from 11:00 p.m. to 7:00 a.m. Employees C and D could cooperate so that Employee D calls the Nursing Office to take sick leave for the night shift. Shortly thereafter, Employee C could notify the Nursing Office of Employee C's availability to work the night shift for which Employee D has taken sick leave, after Employee C's regular scheduled evening shift. As a result, Employee C gains an overtime shift while Employee D is compensated for a shift due to paid sick leave benefits. The Investigative Committee notes that this scenario is only possible if Employee C is in the front of the rotation. However, Ms. Ono testified that she notices this type of concerted effort about two to three times per week and that there are some employees who coincidently appear to gain overtime shifts similar to this scenario.183

Although the Investigative Committee recognizes that overtime and paid sick leave benefits are granted to the employees and negotiated for in their collective bargaining agreements, it believes that better mechanisms need to be implemented to control or reduce the risk of some employees taking advantage of their overtime and sick leave benefits for their own financial gain. Over time, such abuse has a financial impact to the Hospital's personnel budget and adds to the Hospital's challenges in acquiring sufficient staff to care for and meet the clinical needs of patients.

d. Collective Bargaining Agreements Impact Overtime Benefits

The Investigative Committee finds that collective bargaining impacts the Hospital's ability to limit or control overtime. In 1996, the Hospital was ordered by the federal court to "adopt and implement a policy that no [Hospital] employee works voluntary overtime on consecutive days and that limits the number of voluntary overtime shifts for each employee to a maximum of three shifts per week."184 However, this order limiting overtime was evidently not implemented due to state collective bargaining laws.185 The Investigative Committee is concerned with and interested in the reconciliation of the federal court order and collective bargaining agreements.

According to the Department of the Attorney General, changes in overtime opportunities afforded to public sector employees in Hawaii are generally subject to mutual consent absent a judicial decree specifically suspending collective bargaining.186 The order directing the Hospital to implement an overtime policy did not contain a clause specifically suspending any aspect of the relative collective bargaining agreements.187  Therefore, the Department concluded that the affected public employee unions would take the position that the proposed overtime policy modifications under the order constituted material changes to hours, wages, and condition of work set forth in their collective bargaining agreements and that mutual consent was necessary to implement these overtime policies.188 The Hospital was not successful in obtaining consent from the United Public Workers union and accordingly, the overtime policies prescribed under the order were not implemented.

While the Investigative Committee notes the conclusions submitted by the Department of the Attorney General, it believes that this conclusion only applies to the 1996 order and should not apply to or prevent the implementation of any subsequent Hospital should consult and cooperate with the respective unions to develop and implement a solution that will decrease personnel costs and follow collective bargaining laws and agreements.

The Investigative Committee further notes that in August 2014, the City and County of Honolulu and the United Public Workers union reached an agreement that allows paramedics and emergency medical technicians to work longer shifts, but shorter weeks.190 This agreement is expected to reduce the amount of overtime of emergency medical service workers, save the City and County of Honolulu approximately $1.5 million annually in overtime, and maintain safe worker performance standards.191  Accordingly, the Hospital should make similar efforts to reach an agreement with the unions....

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