Who is affected? When you hear of an overtime class action lawsuits for hospital workers, you may automatically think of doctors, nurses, and other medical staff.
But what many fail to realize is the amount of non-medical hospital workers who get taken advantage of just as much, if not more.
Wage and hour violations occur with those who keep the hospital moving; kitchen workers, janitors, maintenance workers, social workers, and any number of those who are not medical staff but play an equally vital role in daily operations.
Health care workers are entitled to overtime wages under the Fair Labor Standards Act (FLSA). Under this federal law, most employees are entitled to a minimum wage of $7.25 per hour and time-and-a-half for all hours worked over 40 in a given work week.
However, many of these hospital employees are unaware their employer is violating FLSA by shorting their overtime.
Though the rules in the healthcare field can be tricky to navigate, FLSA is there to care about what your job duties entitle and the nature of your work. Job titles and credentials do not count. The Department of Labor has outlined in opinion letters a general idea of what laws specific kinds of workers are/are not entitled to. When you are an exempt employee, that means you are more than likely not entitled to overtime and protections under FLSA.
Below is a list of hospital workers who are generally entitled to overtime pay:
- Though case managers are not exempt, many can be misclassified under an “administrative” exemption under FLSA according to this guidance letter from 2007
- Certified Nursing Assistants (CNA)
- Cooks/chefs
- Janitors and maintenance staff
- Physical, Occupational and Speech Therapists who receive an hourly wage
- Radiologic Technologists
- Respiratory Therapists
- Surgical Technicians
- Ultrasound Technicians
- X-ray Technicians are almost never exempt
Below are a list of hospital jobs that are typically exempt:
- Pharmacists who are not paid on an hourly basis
- Physical, Occupational, and Speech Therapists who are paid on a salary or fee basis
- Radiologists, as they are usually considered a “learned professional”
Are social workers exempt?
Not all social workers are considered exempt under FLSA. Employers have a tendency to classify a social worker as a “learned professional” which are not entitled to overtime pay. Social workers provide a number of psychological and therapeutic evaluations that may include specific treatment plans. Many social workers have a Master’s degree in the areas of criminal justice, education, psychology, or social work. Though this may sound like a learned professional, in many cases they are not.
Many federal judges have ruled a social worker’s educational background is most important when it comes to FLSA wage and overtime protections and the classification of “learned professional.”
A Degree May be Required in order to be Exempt
In 2011, the acting Secretary of Labor Elaine L. Chao filed a lawsuit against the Washington State Department of Social and Health Services (DSHS). The lawsuit accused DSHS of failing to pay social workers overtime, and Chao felt the workers has been inappropriately classified as “learned professionals.”
In order for the court to side with Chao’s complaint, they reviewed requirements by the State of Washington for social workers.
The state requires a person have:
- A college degree in social services, human services, behavioral sciences, or an “allied field”, or three of the following: a degree and 30 semester credits of 45 quarter credits in social services
- At least 18 months of experience as a social worker
- Additional former training provided by the employer
These requirements seem pretty hefty, but this still did not convince the court that a social worker can be exempt under FLSA. In order to do so, the court indicated there must be three ways for a social worker to be considered exempt:
- Must still obtain a Master’s degree in social work, human services, drug and alcohol services, education, counseling, psychology, or criminal justice
- A Bachelor’s degree in human behavioral science, only if they have completed 30 hours each semester, or 45 hours per quarter, in child development, guidance and counseling, sociology, psychology, or social work.
- Have completed a state licensing program that requires a specialized course of study
Regardless of how much practical experience or knowledge one has, a four-year degree itself does not meet enough standards for a social worker to be exempt under FLSA.
Common Hospital Overtime Pay Violations
- Employee misclassification
- Not Counting Interrupted Breaks and Meals as Work
- Not paying for “off the clock” work
- Failing to pay for time worked “on call”
1. Employee misclassification
If you are a hospital worker and wondering if you are considered a “learned professional” under FLSA, therefore not exempt or entitled to overtime, this six-step test can help:
- You must earn a salary, which is a guaranteed amount of pay regardless of how many hours you work
- You must earn at least $455 per week
- Your primary job duty is performing work that requires advanced knowledge
- Such advanced knowledge must be in a field of science or learning (such as medicine or pharmacy)
- Such advanced knowledge is typically gained over a prolonged course of specialized instruction (advanced degrees are used as a figurative yardstick by federal investigators to measure this)
- The work you perform must be primarily intellectual in nature, evaluating possible courses of action and weighing their benefits and risks to decide which course to take
Your work must satisfy each of these conditions in order to be truly exempted from overtime wages– there is litter room for interpretation.
2. Not counting interrupted breaks and meals as work
If you work within a hospital, chances are your employer will automatically deduct meal breaks from your hours. However, if you are interrupted during your break to perform work duties, your time should be compensated.
Under FLSA, the only breaks that aren’t considered work time are what’s known as “bona fide” breaks. Employers cannot assume you’ve taken a break. It is their job to make sure you are not working when you’re on your break and to pay you for if/when you are.
3. Not paying for “off-the-clock” work
As a hospital worker, you may have certain preparations to do before your regularly-scheduled shift. If you come in early to prep or stay late to clean, that is necessary labor you should be paid for.
The Department of Labor has found not only hospitals, but nursing homes and assisted living facilities fail to rightfully pay their employees for performing pre- and post-shift duties.
4. Failing to pay for time worked “on call”
Many hospitals and healthcare facilities have what’s known as an “on call” room where employees can sleep, read, eat, watch TV, and rest. They are expected to jump right back into work when the time comes.
Employers may not be compensating you for this time. You may not leave the premises (though some employees are allowed to) while on call, so that is technically working. It comes down to how much freedom you are allowed to have while on call. If there are any limits that prevent you from using the time for your own purposes, you are probably working and should be compensated.
Questions About a Hospital Overtime Lawsuit? Contact a Johnson//Becker Lawyer for a Free Case Review.
If you feel that your employer is violating their requirement to pay you what you deserve, you should contact us for a free, no obligation case evaluation. We are actively filing new overtime lawsuits across the country and you may be entitled to financial compensation for your unpaid overtime wages.
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