In the media, reports of registered nurses and licensed practical nurses filing unpaid overtime class actions are a constant theme. But nurses aren’t the only health care workers being taken advantage of by their employers. Wage and hour violations are rampant throughout the American healthcare system, affecting tens of thousands of janitors, kitchen workers, social workers and maintenance people every year.
Unpaid Overtime: Hospital Workers
Contrary to popular belief, numerous health care workers are entitled to overtime wages under the Fair Labor Standards Act (FLSA), a federal law protecting the rights of US employees. Maintenance, janitorial and kitchen staff are almost always protected by the FLSA.
The FLSA’s wage and hour laws entitle most employees to a minimum wage of at least $7.25 per hour and “premium” wages for overtime: time-and-a-half for all hours worked over 40. But it’s become obvious that many health care employers aren’t living up to their legal obligations. Every day, hospital workers have their right to overtime pay violated. That’s a crime, both under the law and any common understanding of decency.
Employers take advantage of every employee’s basic good will: you put the patients first. Unfortunately, some hospitals put the interests of their workers last.
Most Health Care Workers Should Make Overtime
There’s no one-size-fits-all answer to that question. Health care overtime rules are complex. The FLSA cares about what you do, the nature of your work, not what your job title is or what others believe your credentials to be.
With that being said, the Department of Labor does issue occasional opinion letters that highlight the agency’s current thinking on specific workers and their exemption status. Being “exempt” means you are probably not entitled to overtime, while being “non-exempt” means that you are entitled to overtime.
Generally Entitled To Overtime
- radiologic technologists are not exempt, according to this Department of Labor guidance letter from 2007.
- x-ray technicians are almost never exempt.
- case managers are not exempt, according to this guidance letter, but many are misclassified under the FLSA’s “administrative” exemption.
- surgical technicians
- physical, occupational and speech therapists who are paid on an hourly basis
- respiratory therapists
- certified nursing assistants
- ultrasound technicians
- radiologists are usually exempt under the FLSA’s “learned professional” exemption.
- physical, occupational and speech therapists are generally exempt, so long as they’re compensated on a salary or fee basis
- pharmacists, except those paid on an hourly basis
Beside LPNs, Labor Department official Kenneth Stripling told the New York Times that hospital janitors and cooks are “particularly vulnerable to wage violations” in 2010.
Are Social Workers Exempt Under FLSA?
That’s a tough question. The short answer? Some, but by no means all, social workers will be “exempt” under the FLSA. For what it’s worth, health care employers tend to classify social workers as “learned professionals” – a group of workers who usually aren’t entitled to overtime wages.
On paper, this classification makes a little sense. Social workers perform a wide range of functions in a health-care setting, from evaluating the psychological and therapeutic needs of patients to developing and implementing specific treatment plans. Some, but not all, social workers will have a Master’s degree in social work, education, psychology or criminal justice. Add all that together and social workers certainly start to sound like “learned professionals.” But in most cases, they aren’t.
Most Social Workers Not “Learned Professionals”
In practice, courts have held that most social workers are not exempt from the FLSA’s wage and overtime protections. While this opinion isn’t universal, many federal judges have decided that a social worker’s educational background is more important than job duties where FLSA classification is concerned.
Take this 2011 Ninth Circuit Court of Appeals decision. The case is notable for several reasons, not least because it was filed by then-Secretary of Labor Elaine L. Chao against Washington State’s Department of Social and Health Services (DSHS). In the lawsuit, Secretary Chao accused the DSHS of failing to pay social workers overtime. In her mind, the social workers had been inappropriately classified as “learned professionals.” The Court agreed.
To Be Exempt, Degree In Specific Discipline Required
To arrive at its conclusion, the Court reviewed Washington State’s educational requirements for social workers. To become a social worker in Washington, the State requires that a person have:
- a college degree in social services, human services, behavioral sciences or an “allied” field; or all three of the following:
- a degree and 30 semester credits or 45 quarter credits in social services,
- at least 18 months’ experience as a social worker,
- additional formal training provided by the employer
That might seem like a high bar, but the Ninth Circuit Court of Appeals held that those educational standards were not enough to automatically make the social workers exempt under the FLSA. So what would be enough? The Court outlined three ways that a social worker could be legitimately classified as “exempt,” echoing opinions first voiced by the Department of Labor:
- a master’s degree in:
- social work
- human services
- drug and alcohol
- criminal justice
- a bachelor’s degree in human behavioral sciences, but only if the worker completed 30 hours each semester (or 45 hours each quarter) studying:
- child development
- guidance and counseling
- social work
- completing a state licensing program that requires a specialized course of study
In short, a four-year degree isn’t enough to make a social worker exempt under the FLSA – no matter how much practical experience or knowledge that worker has gained on the job. That four-year degree has to be in one of the specific areas of study we described above.
4 Common Hospital Overtime Pay Violations
1. Employee Misclassification
Federal law assumes that every worker is entitled to the minimum wage and overtime pay, unless they fall under an “exemption.” Employers are not required to pay exempt employees overtime wages. But they frequently misclassify employees as exempt, depriving them of their rightful wage and hour privileges.
In the health care industry, employees are often misclassified under the “white collar” professional exemption.
Are You Misclassified As A “Professional”?
The FLSA considers “learned professionals” exempt, and thus not entitled to overtime. Here’s a six-step test to see if you’re properly classified as a “professional”:
- You have to earn a salary, a guaranteed amount regardless of how many hours you work
- You have to earn at least $455 per week
- Your primary job duty has to be performing work that requires advanced knowledge
- Your advanced knowledge must be in a recognized field of science or learning (medicine and pharmacy fit the bill)
- The advanced knowledge you possess is customarily gained over a prolonged course of specialized instruction (federal investigators usually use advanced degrees as the yardstick for this step)
- Your work must be primarily “intellectual” in nature, evaluating possible courses of action, weighing their benefits and risks and deciding the best course to take
To be properly exempted from overtime wages, your work has to satisfy each of these six conditions, not just a few. But obviously, there’s room for interpretation in some places.
Determining whether or not a particular employee is actually exempt almost always comes down to a thorough analysis of the tasks they perform.
2. Not Counting Interrupted Breaks & Meals As Work
If you work in a hospital, it’s likely that your employer automatically deducts a meal break from your hours. This practice is widespread in health care facilities, but it might also be a violation of federal law.
Here’s the bottom line: you deserve to be paid for all the work you do, and you’re legally entitled to fair, complete compensation. If you take a “break,” but get interrupted by work duties, you’ve started working again. Those hours should count toward your wages and overtime.
Under the FLSA, only “bona fide,” actual, breaks aren’t considered work time. But employers can’t assume that you’ve actually taken a break. It’s a hospital’s duty to make sure you’re not working on your breaks, and they have to pay you when you are.
3. Not Paying For “Off The Clock” Work
Many health care employees aren’t just working during their regularly-scheduled shifts. Coming in early to prepare for the work day, or finishing up after your shift has technically ended – that’s often necessary labor and you should be paid for it.
The Labor Department has consistently found that hospitals, assisted-living facilities, and nursing homes fail to compensate their employees for performing necessary pre- and post-shift duties.
4. Failing To Pay For Time Worked “On Call”
Most, if not all, hospitals and residential care facilities are equipped with an “on-call” room. Employees are allowed to read, eat, watch TV and sleep while on-call, but are expected to jump into action at a moment’s notice.
If you’re confined to your employer’s premises during on-call time, you’re always working. That’s all compensable time, but is it really going into your employer’s overtime calculations at the end of the week?
Even employees who are allowed to leave the premises while on-call may be working. It’s a matter of how much “freedom” you’re allowed, whether or not you can reasonably do things for your own benefit. If the conditions of being on-call make it so you can’t effectively use the time for your own purposes, you’re probably working.
In most cases, only workers who are allowed to be on-call at home are not working under the FLSA.
Can I Really Get Double What I’m Owed?
If you’re the victim of wage theft, the Fair Labor Standards Act allows you to file a lawsuit for double the back pay you should have made, along with attorney’s fees and court costs.
The unpaid overtime attorneys at WageAdvocates.com believe there’s nothing more important than a fair day’s pay for a fair day’s work. That’s why we fight tirelessly to see the rights of workers honored every day.
Our legal services are offered on a contingency-fee basis, which means you pay nothing until we win a court award or settlement in your favor. We also offer a free legal consultation to all employees who believe their rights may have been violated.
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