Probity Health, a Baltimore-based home health care agency, has been accused of failing to pay hourly in-home care providers legally-required overtime wages. In a new class action lawsuit, filed September 28, 2016, a Certified Nursing Assistant for Probity Health accuses her employer of “wilfully” violating overtime requirements set out in the federal Fair Labor Standards Act, as well as the Maryland Wage and Hour Law.
Probity Health Violates Overtime Law, CNA Says
The lawsuit, which is currently seeking certification as a class and collective action, alleges that Probity Health has failed to pay its in-home care providers overtime wages for hours worked over 40 in a week, as required by federal and state law.
The lawsuit was filed in the US District Court for the District of Maryland, Northern Division under the case number 1:16-cv-03271-JFM. The Plaintiff, a current employee of Probity Health, is being represented by the experienced wage and hour attorneys at WageAdvocates.com.
Third-Party Employers Must Pay In-Home Care Workers Overtime
A recent change in governmental policy has extended the right to overtime wages to thousands of Home Health Aides, Certified Nursing Assistants and other in-home care workers. As of January 1, 2016, domestic service workers employed by third-party companies to provide direct in-home care are now definitively classified as “non-exempt” from the Fair Labor Standards Act.
That means Home Health Aides, along with Certified Nursing Assistants and other similar employees, are entitled to the federal minimum wage and overtime pay. These workers were routinely considered “exempt” from overtime wages in previous years. Note, however, that Maryland’s minimum wage is actually higher than the rate set by federal law. In 2017, the State has instituted a minimum wage of $9.25 per hour. Prince George’s County and Montgomery County will establish an even higher minimum wage, $11.50 per hour, on October 1, 2017 and July 1, 2017 respectively.
Probity Health, the class action alleges, has not upheld this obligation. In her complaint, the Certified Nursing Assistant says that her own employer has failed to comply with the Department of Labor’s new guidelines.
Employee Files Class Action Against Probity Health
While she routinely worked more than 40 hours per week, in some cases spending 84 hours on the job in a single week, Plaintiff claims that her employer “withheld” overtime wages to which she was allegedly entitled. Instead, the employee says she was only paid at her straight hourly rate, $13, even for overtime hours.
This alleged violation of federal and Maryland State law extended well beyond one Certified Nursing Assistant, Plaintiff claims. She says that Probity Health “maintained a policy and practice of paying overtime at less than the proper legal rate.” That “policy,” she claims, may have touched every home health worker employed by Probity Health since the Labor Department’s new rule went into effect.
The Plaintiff, herself a Certified Nursing Assistant, has filed the lawsuit on behalf of “current and former” Certified Nursing Assistants and Home Health Aides, along with employees who perform similar job duties but have different job titles.
“All current and former Certified Nursing Assistants, Home Health Aides, or other job titles performing similar job duties employed by Probity Health, Inc. at any time since January 1, 2015 through completion of this lawsuit, who worked over 40 hours per week, and were not paid overtime for hours worked over 40 in a workweek.”
According to the lawsuit, “there are numerous other similarly situated current and former employees who performed uncompensated overtime hours in violation of FLSA and would benefit from the issuance of a court-supervised notice of this action and the opportunity to join it.”
New Federal Rule Expands In-Home Care Overtime
As the complaint notes, the Department of Labor recently issued a new rule, extending the right to overtime wages to direct care workers, including Home Health Aides, employed by third-party employers. The federal agency’s decision, announced on January 1, 2015, reversed a long-standing policy that allowed third-party employers to consider workers who perform “companionship services” in private homes as exempt from the Fair Labor Standards Act.
In declaring the change, the Labor Department cut straight to the heart of the issue, saying it was “prohibiting third party employers, such as home care agencies, from claiming the companionship or live-in exemptions.” Despite this clarification, Plaintiff claims that her own employer, Probity Health, failed to meet its new obligations. The company “knew or should have known” that its Certified Nursing Assistants and Home Health Aides are now required to be paid overtime, she writes, but Probity Health “does not pay overtime.”
Maryland’s own overtime law, the Maryland Wage & Hour Law, has not previously and currently does not “include any exemptions for nursing positions and / or domestic service worker positions,” the complaint reports.Court documents say that Probity Health employs a wide array of healthcare professionals, from Registered Nurses and Licensed Practical Nurses to Certified Nursing Assistants and Home Health Aides. The lawsuit has not yet been certified as a class action. To learn more about the complaint, feel free to contact our attorneys.