Attorney General Issues Citation and Fine Against Beth Israel Lahey Anna Jaques Hospital for Failure to Keep Accurate Time Records of Nurses Who Worked Through Meal Breaks

Despite Nurses Filing Complaint Over Inability to Take Legally Required Meal Breaks and Non-Payment in September 2022, Anna Jaques Management Still Has Not Made Meal Breaks Possible for Nurses Working 8-12 hour or longer shifts.

This is the latest example of poor working conditions and mistreatment by hospital management that led nurses to cast overwhelming vote to authorize a three-day strike to attain a new contract to recruit and retain the staff needed to ensure quality patient care

NEWBURYPORT, Mass., Nov. 14, 2023 /PRNewswire/ -- As the registered nurses at Beth Israel Lahey Anna Jaques Hospital (AJH) continue to engage in efforts to address longstanding concerns about the lack of staff and resources to ensure safe working conditions and quality patient care, the Massachusetts Attorney General's office has stepped in to issue a citation and fine against the employer for a manifestation of that situation. 

The AG's office issued a citation and fine totaling $7,500 last week against AJH for violations of Mass. General Law (MGL) ch 149, sections 15 and 19(3), "Failure to keep true and accurate payroll records from 8/14/2022 to 11/3/2023". The Mass. Attorney General's Office's Fair Labor Division found in issuing the citation that AJH management's timekeeping records do not accurately reflect the hours actually worked by nurses who are unable to take a meal break and unable to get approval to miss a meal break). The penalty assessed is the maximum allowed in such circumstances.

Nurses report that due to the lack of staff on the units, the decision to take a meal break is a dangerous Hobson's choice between taking a break to rest and refuel to make it through a long shift, or in so doing, to force one of their colleagues to take on their patient assignment, meaning for a nurse on a medical floor who is usually providing care, and being legally accountable for the safety of their current five very sick patients, that nurse could now have up to ten patients. This is occurring at a time when the medical research shows that every patient added to a nurse's patient load increases the risk of death or injury for all those patients by 7 percent per patient assigned, meaning the patients under the care of the nurse with ten patients would be placed at a 35 percent increased risk for injury or death. 

According to Walter Keenan, RN, a nurse in the hospital's busy emergency department, the same week the citation was issued he and other nurses in the ED worked yet another 12.5 hour shift, with none of the nurses able to take a meal break. "I and all of the other nurses that night had at least five patients apiece, not accounting for our need to provide care to any patients arriving by ambulance. Most of our patients in the ER are medically unstable. You can't walk away and leave them, and you can't give a co-worker your five extra patients on top of their five who are also medically unstable," Keenan explained. "There is no way we could take a break without putting all those patients in jeopardy."

According to Caitlin Reczek, a charge nurse who is responsible for covering two of the hospital's units at the same time, "We are frequently lacking the appropriate amount of ancillary/support staff (nursing aides and unit secretaries) and are usually working understaffed as it is. If we did take our breaks without an RN designated to just cover breaks, our fellow RNs could have 8-10 patients a piece which could impair patient safety. We went into nursing to take care of patients and because the hospital doesn't find a break nurse necessary at this time, that means we as nurses sacrifice our self care to ensure that our patients are getting the care they deserve."

Keenan and others have also pointed out to management that there are only two or three RNs in the ICU at any given time. Sometimes only two. Without assigning a break RN to come in it would be impossible for any RN to leave the ICU. In fact it would be illegal (there is a state law requiring a 1:1 ratio for ICU patients and nurses, with an exception allowing for two patients to a nurse if the nurse assesses both are stable). Should one of those nurses leave the unit to take a meal break, leaving only one or two RNs in the unit would place those critically ill patients at risk for serious harm. 

Heather Day, a nurse at AJH who also works per diem shifts at a number of other hospitals in the region, reports AJH is a true outlier when it comes to nurses taking breaks. "Every other hospital I work at, you are encouraged to take your breaks, and many supervisors go out of their way to make sure you can do so. This rarely if ever happens at Anna Jacques," said Day. "On one night I asked my supervisor if I could get some relief to take my break and her response was, 'no other nurse in the hospital is getting break tonight, Heather.' This is unacceptable."

Background on the MNA Complaint

The Massachusetts Nurses Association filed the complaint with Attorney General's office 14 months ago on behalf of its members, and provided evidence to the AG, which then set the AG's own investigation in motion. Quoting from the MNA's 9/20/2022 complaint:

1. The employer does not have a method for recording missed meal breaks. A) They do not use a swipe attestation, b) They also do not have a form for employees to record missed meal breaks, c) So, we several times have asked management to create a form or modify their timesheet to ask the question 'Did you receive an uninterrupted 30 min. meal break if you worked more than 6 hours' or words to this effect. They have refused.
2. We know that in a large % of cases …the RNs do not get meal breaks. [This includes RNs who work 12 or more hours].
3. To try to document this we have: a) Distributed missed meal break log forms in break rooms and nurses stations. Management removed them from every unit and threw them away. They told union reps [who are working RNs] that they were not to redistribute (despite allowing other forms for Girl Scout cookies and other fund raisers, etc.) b) After this, we placed a three-ring binder marked 'MNA Property. DO Not Remove' with logs in all break rooms. Management later admitted in writing to removing them all.
4. Management distributed a policy with a 'citation' to a non-existent state law waiving the meal break requirement 'in emergencies'. 

On this last point, the MNA wrote to management on 9/14/2022 saying that their meal break policy falsely sites a non-existent waiver to the law. Quoting from MNA's letter to management of that date:

"In the [employer's] policy document we are seeing for the first time it says: '…all employees who work more than six hours are required to be given a one-half hour unpaid meal period, except in emergencies exempted by statue (M.G.L. Chapter 373) from this requirement.

We pointed out that there is no such exemption in Massachusetts law. Hospitals are places of emergencies by definition. The M.G.L. Chapter 373 is actually titled, "An Act Further Regulating the Filling of Vacancies on Certain Boards and Commissions in the City of Boston." MNA sent several written demands that management remove this made up citation from the policy. Ten days later management's human resources director wrote back, "We are working on updating the policy to reference the correct statute". [Emphasis added].

Now, 14 months later, the nurses see no improvement in their ability to take 30 minute breaks during long shifts.

In addition to seeking intervention from the Attorney General, the nurses are utilizing their current negotiation for a new union contract to address the issue, which includes a new proposal to require the hospital to provide additional staff, break nurses, who would be made available to inpatient units to provide nurses with the opportunity to take their breaks, while ensuring safer patient care. 

The hospital categorically rejected the proposal in negotiations on October 8 while also notifying the nurses that they intend to appeal the Attorney General's citation, adding yet another insult to their ongoing injury to staff. 

The hospital's intransigence on this issue is the latest manifestation of its failure to heed nurses' concerns and provide them with the resources the nurses have made clear they need to ensure the hospital can recruit and retain the staff needed to ensure quality patient care, while preventing the ongoing exodus of nurses from the hospital to work at better paying better staffed facilities. 

The AJH nurses who are the lowest paid nurses in the region, with salaries that average between 15 – 28 percent below other facilities north of Boston, have witnessed the unprecedented turnover of staff, losing more than 28 percent of their staff between 2021 and 2023, nurses who left to work at facilities with better pay, benefits and staffing conditions – facilities that can provide a meal break.

Said Eileen Ryan, RN, co-chair of the MNA bargaining unit at AJH, "In bargaining, management said they refuse to provide relief RNs so we can take breaks while they make the absurd claim to the AG that the law does not apply to them and they cannot be held accountable. They should look no further if they wonder why RNs go to work elsewhere. That has to change. This hospital's mission is too important."

While negotiations continue until the current contract's expiration on Dec. 31^st, the nurses last month registered their consensus for needed improvements in their conditions with an overwhelming vote to authorize a three-day strike if management continues on its current course.

According to Margaret Mirecki, the other co-chair of local bargaining unit at the hospital. "We are trying to provide the highest-quality care possible to the people of this community, at a hospital we love and want to see thrive. But, due to management's refusals, we are struggling to find and keep experienced nurses while executives have been cutting back or closing services. We need AJH executives to finally listen to us."

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Founded in 1903, the Massachusetts Nurses Association is the largest union of registered nurses in the Commonwealth of Massachusetts. Its 25,000 members advance the nursing profession by fostering high standards of nursing practice, promoting the economic and general welfare of nurses in the workplace, projecting a positive and realistic view of nursing, and by lobbying the Legislature and regulatory agencies on health care issues affecting nurses and the public.

SOURCE Massachusetts Nurses Association