Nurses sue, say VA’s not paying overtime

Two Tristate nurses employed by the Department of Veterans Affairs are among those who have relaunched a federal lawsuit against the federal government, claiming they were forced to work overtime but were not compensated.

Thirty-three nurses from VA medical centers across the country have joined the suit filed in the Court of Federal Claims. The nurses charge that the VA "expected, required and induced" them to work overtime performing View Alerts, an electronic health records system, according to the lawsuit.

VA officials and the U.S. Department of Justice attorneys defending against the lawsuit would not comment while litigation continues.

Audricia Brooks, a nurse practitioner at the Cincinnati VA Medical Center in Corryville, and Stephanie Mercier, a nurse practitioner at the Lexington VA Medical Center, are the original plaintiffs in the lawsuit filed in December 2012 by Cook and Logothetis, a Downtown law firm specializing in labor law.

Their complaint explains that View Alerts are electronic requests for information or follow up that are sent directly to nurses and physicians regarding patients who use the VA as for primary medical care.

Nurses receive View Alerts anytime day or night from up to 900 patients, said Sadie Hughes, president of National Nurses United and a nurse in the Cincinnati VA Medical Center.

The alerts can contain patient notes, information on doctors appointments, prescriptions, and lab test results, Hughes said.

"In the midst of trying to take care of everybody, you may miss something that could be significant," Hughes said. "That could be lethal for a veteran. With that in mind, I'm responsible for that patient, so I'm going to do what I need to do to get the job done. Whether I'm paid for it, or not."

David Cook, a lawyer for the nurses, said that Mercier sometimes spent 20 hours a week outside of her scheduled shifts tending to View Alerts.

"I've stayed late, I've come in on weekends and many people do that to get the job done," Hughes said. "After a period of time the nurses just start saying 'we'll just do it.' Anytime we ask for overtime, it has a negative impact and if they don't work overtime then patient care suffers."

Nurses have two weeks to complete the View Alerts before the alerts are removed from the system, according to the complaint. If nurses don't complete the alerts, they are subjected to "intensified scrutiny, management intervention and disciplinary action for poor time management," the complaint states.

Overtime requests can have a negative impact on annual job performance reviews, Hughes said. Evaluators equate overtime requests with poor time management and nurses could miss out on promotions or bonuses, she said.

The nurses claim the VA had knowledge that overtime work was being done to complete the View Alerts because the system documents when they log in and out. Some nurses were also given laptops and remote access to the records system so they could complete View Alerts from home, according to the complaint.

"The stress of working at the VA right now is so high that we can't keep nurses," Hughes said. "We're being overworked and it's the quality of care that we want to provide but we can't provide because we don't have enough staff."

Hughes and Brooks were part of a group of nurses who picketed in February for more hospital staffing in front of the VA Medical Center in Corryville.

The local hospital has 416 full-time nurses and 26 part-time nurses, according to Denise Kerr, the hospital’s director of public affairs. Hughes wants to see 30 or 40 more nurses hired.

With more than 80,000 nurses, the Department of Veterans Affairs is the largest employer of nurses in the county, according to the Office of Nursing Services.

The Court of Federal Claims initially dismissed the nurses' lawsuit in February 2014. But the case returned to court in May after the U.S. Court of Appeals ruled in the nurses' favor over what constitutes "induced" overtime.

Attorneys for the federal government argued "induced" overtime does not mean the work was "ordered or approved" by officials and, according to law, the VA is not required to compensate them.

"Induced" overtime does not have a precise legal definition, said Clement Tsao, an attorney for the nurses. He said there are multiple factors that could constitute inducement including VA knowledge that the overtime was being performed, and the nurses' medical and ethical obligations to ensure the quality of patient care.

The panel of judges in the U.S. Court of Appeals concluded that "induced" overtime could be considered ordered or approved and remanded the lawsuit back to the Court of Claims.

In addition, U.S. attorneys said some overtime requests were put in after the nurses had already worked overtime, against VA's overtime policies.

However, Kerr, the local VA spokeswoman, said that in emergency situations nurses will be paid overtime regardless of when they put in their requests.

"If a nurse works overtime in an emergency situation, he/she will be paid overtime regardless of requesting the OT at that time. It is not unusual for a nurse to enter the request after working the shift," Kerr said.

Kerr added that nurses can submit overtime requests to supervisors verbally or through email.

The lawsuit is still in its early stages, Tsao said. There isn't a time line for when a decision or settlement could be made.

"On one hand, in the pure legal aspect we are seeking a financial recovery but if we are able to be successful, hopefully the VA will change its staffing so the nurses don't have to be in this position," said Cook, the attorney for the nurses. "It's our hope that the VA will recognize the toll that is being taken on their employees."