An institution that is “primarily engaged in the care of the sick, the aged, or the mentally ill” will have to provide overtime wages at one point or another to some of its employees. Yet, hourly nurses are common victims of wage theft. Hospitals, nursing homes, and health clinics would all fall under this category with the Fair Labor Standards Act.
For example, a Department of Labor investigation of the state of New York health care employers found that more than 64% of them had been violating some part of the FLSA wage and hour laws.
In 2013, over 1,400 hourly nurses in Madison, Wisconsin received over $3.5 million in backpay from St. Mary’s Hospital. The hospital had failed to provide bona fide (duty-less) meal breaks yet counted those hours as unpaid.
As a reminder, an hourly nurse is entitled to a minimum wage of $7.25 per hour and overtime wages, one-and-a-half their regular rate of pay, for any hours worked over 40 in a week. The failure to provide hourly nurses with overtime pay is incredibly unfair to those who keep us, and our families, safe, healthy, and cared for.
Common wage violations that are unique to hourly nurses
Missed meal breaks and stolen wages
It is not uncommon for a nurse to work through their meal break due to emergencies, especially if they are working in an understaffed facility. Certainly employers are allowed to deduct time spent eating from the hours worked, but only if a nurse was not working during that time. If they are interrupted during their meal break to tend to an emergency, this should be counted towards overtime.
Nurse misclassification
Some nurses have been counted as exempt when they are not. In 2007, hundreds of health care workers and registered nurses filed a suit against Kaiser Permanente; claiming the company fraudulently classified them as exempt, which led to $7.25 million in lost overtime wages. The healthcare company never admitted to this wrongdoing, but settled anyway.
Most nurses are not exempt, and this is how to tell:
Are you a learned professional?
As you have learned, nurses considered exempt are not entitled to the wage and overtime protections of the FLSA. This is due to the law’s “professional” exemption criteria. In order to be considered a learned professional, you must meet all of the following:
- You are paid a salary or fee of no less than $455 every week
- Your primary duties involve advanced knowledge
- That knowledge is in a “field of science or learning” (both medicine and pharmacy count towards this)
- Your advanced knowledge was acquired through a “prolonged course of specialized intellectual instruction”
If you do not meet all four of those criteria, you are more than likely entitled to overtime wages. Nurses who receive a salary can still be eligible for overtime pay.
Registered nurses who are paid hourly are entitled to overtime pay, according to the Department of Labor. Only those registered nurses who are licensed by a State examining board, and who make a salary of $455 or more per week, may be exempt from overtime pay.
However, licensed practical nurses (LPN) are typically never exempt. A strong majority of LPN’s are entitled to overtime pay.
Mandatory Overtime
Mandatory overtime is a practice that has become increasingly common in recent years. By 2000, a survey conducted by the American Nurses Association found over 67% of nurses worked unplanned overtime each month. This is one part of the healthcare industry that has contributed to wage violations.
Is mandatory overtime illegal?
Under the FLSA, mandatory overtime is not illegal. That’s because there is no current federal law that restricts an employer to mandate overtime (hours over the standard 40 per workweek). There is also no federal legislation that could stop an employer from threatening you with dismissal if you declined the overtime work.
However, many states have banned or limited the practice of mandatory overtime; in particular when it comes to nurses. To see if you live in one of these states, click here. (**NEEDS to link to FLSA Mandatory Overtime for Nurses by State)
The FLSA does guarantee that if you work overtime, you must be paid accordingly at one-and-one-half your regular rate of pay.
Other health care workers and FLSA
The FLSA has included many exemptions that can affect your status as a health care worker. One is the “companionship” exemption. However, this no longer covers as many of the workers as it used to.
Home Health Care Services
In-home health care workers who provided “companionship services” to clients were exempt from the FLSA overtime protections. This meant they were not entitled to minimum wage and overtime protections.
However, this has since changed. In 2015, a US Court of Appeals in Washington, D.C said a third-party employer of workers who provide these companionship services in a patient’s home can no longer exempt their employees from the FLSA’s overtime pay requirements.
https://wageadvocates.com/wp-content/uploads/2015/08/Home-Care-Association-v-David-Weil.pdf <<not sure what to do with this>>
According to the Department of Labor, the basic definition of companionship is: “Services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves.”
These services include, but are not limited to:
- Conversation
- Playing games
- Running errands
- Accompanying the client to social events
If you perform this kind of in-home work for a patient or patients, you’re no longer considered exempt under the FLSA, and are entitled to overtime pay.
Nurses who work in-home always perform “domestic services” and are typically always covered by the FLSA. Certified nurse aides and home health care aids are also usually guaranteed overtime pay under federal law as well.
Paramedics and EMT
Emergency medical personnel usually always qualify for overtime wages, unless their duties relate to substantial firefighting or law enforcement work.
Questions About an Hourly Nurse 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.
We offer a Free Case Evaluation. Please contact us using the form below or by calling us at (800) 279-6386.
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