Expand AllClick here for a more accessible versionAct 102 prohibits a health care facility from requiring employees to work more than agreed to, predetermined, and regularly scheduled work shifts. Employees covered under Act 102 are individuals involved in direct patient care or clinical care services who receive an hourly wage or who are classified as nonsupervisory employees for collective bargaining purposes.
Act 102 does not prevent an employee from working more than an 8-hour shift if this shift is agreed to and regularly scheduled. It does not prohibit overtime for on-call time if certain unforeseeable emergent circumstances occur or if an employee must complete a patient care procedure already in progress at the end of regularly scheduled shift and the employee's absence could have an adverse effect on the patient.
Act 102 does not restrict an employer from providing employees more protection from mandatory overtime than the minimum established under this act. Employees may also agree to work any overtime. However, an employer may not retaliate against an employee who refuses to work overtime.
An employee required to work more than 12 consecutive hours under the Act 102's exceptions or who volunteers to work more than 12 consecutive hours must receive 10 consecutive hours of off-duty time immediately following the worked overtime. An employee may waive this off-duty time, however.
The Pennsylvania Department of Labor & Industry, Bureau of Law Compliance enforces Act 102. The Bureau investigates alleged violations and may seek the imposition of civil fines and corrective orders of any healthcare facility or employer that violates Act 102.
A healthcare facility, defined under section 2 of Act 102, is governed by this law’s provisions. These facilities provide clinically related health services, regardless of whether the operation is for profit or nonprofit and whether operation is by the private sector or by state or local government. These facilities include:
A general or special hospital, a psychiatric hospital, a rehabilitation hospital, a hospice, an ambulatory surgical facility, a long-term care nursing facility, a cancer treatment center using radiation therapy on an ambulatory basis and an inpatient drug and alcohol treatment facility.
A facility which provides clinically related health services, and which is operated by Pennsylvania’s Departments of Corrections, Health, Military and Veterans Affairs or Human Services.
Intermediate care facilities for persons with intellectual disabilities operated by the Pennsylvania Department of Human Services.
Act 102 does not govern the following:
An office used primarily for the private or group practice by a health care practitioner.
A facility providing treatment solely on the basis of prayer or spiritual means in accordance with the tenets of a church or religious denomination.
A facility conducted by a religious organization for the purpose of providing health care services exclusively to clergy or other individuals in a religious profession who are members of the religious denomination conducting the facility.
Section 2 of Act 102 defines an employee covered by that law. An employee is:
An individual employed by a health care facility (See FAQs 3 and 4), the Commonwealth of Pennsylvania or one of its instrumentalities, or a political subdivision (such as a county, municipality, school district, local government), and;
Who is involved in direct patient care activities or clinical care services, and;
Who receives an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes.
An employee also includes an individual employed through a personnel agency that contracts with a healthcare facility to provide personnel.
An individual is engaged in clinical care services if the individual is involved in diagnostic imaging, treatment or rehabilitative services provided in a health care facility including the following: radiology, and diagnostic imaging, such as magnetic resonance imaging and positron emission tomography; radiation therapy; and laboratory medical services.
Act 102 has some exclusions:
Does not apply to facilities and workers which do not fall within the definitions of health care facility and employee contained in section 2 of Act 102. (See FAQs 3, 4, 5 and 7)
Does not prevent an employee from working more than an 8-hour shift if this shift is agreed to and regularly scheduled.
Does not prohibit overtime for on-call time allowed under Act 102 (See FAQ 18).
If an unforeseeable emergent circumstance occurs (See FAQ 13).
If an employee must complete a patient care procedure already in progress at the end of regularly scheduled shift and the employee's absence could have an adverse effect on the patient.
Does not prevent an employer from providing employees more protection from mandatory overtime than the minimum protections established under this act.
Does not prevent employees from agreeing to work overtime.
However, an employer may not retaliate against an employee who refuses to work overtime unless there is an unforeseeable emergent circumstance (See FAQ 13) or overtime is needed to complete an on-going patient care procedure already in progress and the employee's absence could have an adverse effect on the patient.
Act 102 does not cover:
A physician
A physician assistant
Dentist
Workers not involved in direct patient care and clinical care services including:
Environmental services
Clerical
Maintenance
Food service
Workers who are not employed by a health care facility. (See FAQs 3, 4 and 5).
Act 102 covers these workers if they meet the definition of employee in section 2 of Act 102 (FAQ 5) and are employed by a health care facility (such as a general or special hospital, psychiatric hospital, rehabilitation hospital, ambulatory surgical facility; long-term care nursing facility, cancer treatment center using radiation therapy on an ambulatory basis or an inpatient drug and alcohol treatment facility). Act 102 does not cover home health care workers employed by an entity that does not meet the definition of health care facility. (See, FAQs 3 and 4).
Act 102 does not cover EMTs employed by a firefighting or other emergency organization. Act 102 may cover an EMT employed by a healthcare facility. (See FAQs 3, 4 and 5).
Act 102 covers these practitioners if they are employees who are employed by a healthcare facility. (See FAQs 3, 4 and 5).
Act 102 covers a pharmacist employed by a health care facility (See FAQs 3, 4 and 5) engaged in direct patient care activities or clinical care services and who receives an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes.
An unforeseeable emergent circumstance is:
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 needed health care services or increases the need for health care services. These events include: an act of terrorism; a natural disaster; and 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 could significantly affect patient safety. Note: No time-period is set for when the notification of an unexpected absence must occur. The Bureau of Labor Law Compliance will review each case individually.
The following requirements govern mandatory overtime if an unforeseeable emergent circumstance (See FAQ 12) occurs:
Assignment of additional hours must be utilized as a last resort.
The health care facility or employer must exhaust reasonable efforts to obtain other staffing. Reasonable efforts are defined as:
Seeking persons who volunteer to work extra time from all available qualified staff who are working at the time of the unforeseeable emergent circumstance;
Contacting all qualified employees who have made themselves available to work extra time;
Seeking the use of per diem staff; or
Seeking personnel from a contracted temporary agency when use of this staff is permitted by law or regulation.
NOTE: The health care facility may need to utilize other efforts which may not be listed or were not repeatedly unsuccessful in the past before overtime is mandated.
The facility must provide the employee up to 1 hour to arrange for the care of the employee's minor child or elderly or disabled family member.
The facility must provide at least 10 consecutive hours of off-duty time immediately after the worked overtime. An employee may voluntarily waive this off-duty time.
Act 102 allows mandatory overtime for absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by the employer and which could significantly affect patient safety. There is no specific time- period for the call-off to occur.
Factors on whether a last-minute call-off constitutes grounds for allowing mandatory overtime include whether the employer could have prudently planned for the unexpected absence, whether there is a pattern of absences at certain times, whether the facility is experiencing chronic short staffing, whether the absence impacts patient safety and the employer's efforts and policies concerning unexpected absences, among other things.
A health care facility must meet specific requirements (See FAQ 13) before it requires mandatory overtime.
No. Act 102 prohibits the use of mandatory overtime because of chronic short staffing. A “posted hole in the schedule” is an absence that may be prudently planned for and is not an unexpected absence which is an unforeseeable emergent circumstance.
An unforeseeable emergent circumstance (See FAQ 12) could include severe weather if patient safety could be impacted. This includes unexpected absences discovered at or before the commencement of the scheduled shift, caused by the weather, which could significantly affect patient safety. However, where severe weather is foreseeable or expected (including resulting absences), health care facilities should prepare to fill potential vacancies or staffing needs, redirect or divert patients when possible, utilize mandatory overtime as a last resort and utilize reasonable efforts before mandating any overtime. (See FAQ 13)
An employee who is required to work more than 12 consecutive hours due to mandatory overtime because of an unforeseeable emergent circumstance (See FAQs 12 and 13) or who volunteers to work more than 12 consecutive hours is entitled to at least 10 consecutive hours of off-duty time immediately after the worked overtime. An employee may voluntarily waive this off-duty time.
Section 3(c)(1) of Act 102 permits the use of on-call time if the health care facility or employer does not use this time as a substitute for mandatory overtime or as a means of circumventing Act 102's intent.
On call time is time spent by an employee who is not currently working on the premises of the place of employment but who is compensated for availability; or as a condition of employment, has agreed to be available to return to the premises of the place of employment on short notice if the need arises.
The Bureau reviews the particular facts of each use of on call time such as how it is used and the facility's needs and past practices, among other things.
Yes. An employee may voluntarily accept to work overtime. Act 102 does not prohibit the use of incentives.
Act 102 prohibits retaliation if an employee does not voluntarily accept overtime. Retaliation occurs when an employee refuses to accept mandatory overtime prohibited under Act 102 and the health care facility subjects the employee to discrimination, dismissal, discharge, or any other employment decision adverse to the employee because of this refusal. Accepting overtime is not voluntary if the employer threatens retaliation or coerces the employee.
An employer or health care facility may provide employees more protection from mandatory overtime than those established under Act 102 in accordance with a collective bargaining agreement or other agreement. However, compliance with Act 102’s minimum protections is required notwithstanding the existence of a collective bargaining agreement or employer policy.
Yes. Act 102 requires that:
Health care facilities and employers establish a system for keeping records of circumstances (e.g. unforeseen emergent circumstance, unexpected absences) when employees are required to work more than their agreed to, predetermined and regularly scheduled work shift or more than 40 hours per week.
These records must be kept for at least 3 years.
(34 Pa. Code § 225.3(g))
Labor & Industry’s Bureau of Labor Law Compliance enforces Act 102. The Bureau will investigate alleged violations based upon an employee’s complaint or upon its own initiative. Employees may file a complaint with the Bureau within 60 days of the alleged violation. The Bureau will review and begin an investigation of a complaint within 60 days. The Bureau will notify the complainant and health care facility or employer in writing after its investigation if it finds that there is no violation.
The Bureau may impose the following administrative penalties:
A fine of $100 to $1,000 per violation.
A violation is each discrete time that a health care facility or employer did not comply with Act 102.
Order a health care facility to take an action deemed necessary to correct a violation of Act 102 based upon the facts of the complaint, and the practices of the health care facility or employer. These may include:
Payment of restitution to employees.
Directives for compliance with Act 102 such as changes to policy and procedures to ensure future compliance.
Directives to remedy unlawful adverse employment decisions such as discrimination, dismissal, discharge, or other employment decision adverse to the employee.
If the Bureau of Labor Law Compliance completes its investigation and finds that there was an Act 102 violation, it will issue an administrative decision containing its findings and proposed penalties. The Bureau will mail this decision to the health care facility or employer. The health care facility or employer may:
Accept the notice and pay the penalty.
Request a penalty reduction by mailing the request to the Bureau within 10 days. The request shall set forth mitigating circumstances and an alternative penalty. The Bureau shall act on this request within 10 days.
Submit a written request a formal hearing within 30 days. The request for penalty reduction does not toll this 30-day period.
Labor & Industry may consider the following factors:
Size of business: The number of employees at the location on the date the violation occurred.
History: The number of assessed violations for the health care facility or employer in the preceding 36 months. Includes only assessed penalties that are not subject to further appeal.
Remedial efforts: Voluntary remedial efforts designed to prevent future violations and reinforce the important of compliance with Act 102.
Degree of cooperation: Employer’s lack of cooperation with an investigation, an employer’s failure to provide requested information and an action, such as retaliation, which would constitute a lack of effort to abate a violation.
Length of mandated overtime: The length of the mandated overtime and other factors concerning the violation’s severity.
No. The Pennsylvania Minimum Wage Act and the federal Fair Labor Standards Act govern the payment of overtime wages. The Bureau of Labor Law Compliance also enforces the Pennsylvania Minimum Wage Act.
The Act 102 page has additional information including the law, regulations, complaint form and presentations.
The Bureau of Labor Law Compliance’s regional offices may also provide information:
Altoona Regional Office:
1130 Twelfth Avenue, Suite 200
Altoona, PA 16601-3486
Phone: 1-877-792-3486 or 814-940-6225
Harrisburg Regional Office:
1301 L&I Building
651 Boas Street
Harrisburg, PA 17120-0019
Phone: 717-787-4671 or 1-800-932-0665
Philadelphia Regional Office:
110 North 8th Street, Suite 203
Philadelphia, PA 19130-4064
Phone: 215-560-1858
Pittsburgh Regional Office:
301 5th Avenue
Room 350
Pittsburgh, PA 15222
Phone: 1-877-504-8354 or 412-565-5300
Scranton Regional Office:
201-B State Office Building
100 Lackawanna Avenue
Scranton, PA 18503-1923
Phone: 570-963-4577 or 1-877-214-3962