by Attorney, Tim Becker
For every doctor working in the US right now, there are more than 5 nurses. Forget the backbone. Nurses are the organs, glands and muscles of America’s healthcare system. But more often than not, these crucial workers are over-worked, if not exploited, by hospitals, outpatient facilities and nursing homes who’ve learned that understaffing is a quick and easy way to save money.
Adding insult to injury, most nurses are forced to work overtime hours. While mandatory overtime is still legal in most states, many nurses aren’t being compensated properly for their effort and dedication to patients’ lives.
Despite the recent addition of 250 new wage-and-hour investigators to the Department of Labor’s enforcement office, overtime violations remain particularly prevalent in healthcare. In New York, a Labor Department investigation in 2010 found that the majority of the state’s health care employers (63%) were violating the Fair Labor Standards Act (FLSA). That’s a federal law entitling the better part of US workers to the minimum wage and overtime pay, and it covers most LPNs, RNs, CNAs and (as of January 1, 2015) in-home health aides.
This problem disproportionately affects nurses, some of whom are even told bald-faced lies about their eligibility for overtime. If your employer tells you that you’re “exempt” from the FLSA, that’s a statement you should question. RNs licensed by a state examining board, who also get paid a base salary no less than $455 per week, may be exempt, but even that’s questionable. Salary is critical here; if you get paid by the hour, there’s almost no way you’re exempt.
Lots of hospitals use more nuanced tricks to cheat nurses out of overtime. Most healthcare employers have started automatically deducting “meal breaks” from their nurses’ time sheets. When something comes up, and that “break” gets interrupted, you’ve started working again. If you’re not compensated for that time, and the hours aren’t counted toward your overtime, that’s a violation of federal law. So is failing to pay you for work performed before or after you clock in. You don’t have to tell your employer that you’ve started working. If they don’t want to pay you, it’s their duty to make sure you’re not working.
Overtime for nurses can be paid in two ways, according to the Department of Labor. The standard way is to begin paying a higher overtime wage for any hours worked over 40 in a 7-day period. The other system, “8 and 80,” starts paying overtime for any hours worked over 80 in a 14-day period, but adds overtime for any hours worked over 8 in a single day. For an “8 and 80” system to be legal, it needs to be agreed upon in advance by the employee. In either case, your overtime wage is calculated by taking your “regular rate” (usually your hourly wage, but it can also include bonuses) and multiplying that by 1.5.
How can nurses fight back against labor abuses? By filing a formal complaint with the Department of Labor or filing a civil lawsuit against an employer. It works, too. All across the country, nurses are winning these lawsuits. Here’s one example:
In 2007, hundreds of registered nurses in California sued their employer, Kaiser Permanente, saying the company had misclassified them as “exempt” from overtime wages. Eventually, Kaiser settled the case for around $7.25 million.
Plus, filing an FLSA lawsuit offers the opportunity to secure “liquidated damages,” essentially double the back wages an employee is owed.
Tim Becker is a trial attorney with over 20 years of legal experience. He’s litigated numerous Fair Labor Standards Act lawsuits during his career, and currently serves as Co-Lead Counsel in Lawrence v. Maxim Health Care, a wage-and-hour class action filed by in-home health aides. Tim is the lead sponsor of WageAdvocates.com.