Healthcare workers provide an invaluable service to our nations sick and elderly. In recognition of that service, the US Department of Labor (“DOL”) has pledged to investigate compensation practices throughout the health care industry after finding that many hospitals and nursing homes were not properly paying their health care workers in violation of the Fair Labor Standards Act (“FLSA”). Several potential problems exist with regard to rounding of hours worked, non-payment for travel and training time, interrupted meal breaks and unauthorized overtime.
Rounding of work time is permitted if employee work time is rounded to the nearest quarter hour. However, the minimum wage and overtime pay requirements may be violated if the employer always rounds down. The regulations applicable to the FLSA provide that rounding down is allowed for work times of 1 to 7 minutes, but work times of 8 to 14 minutes must always be rounded up to the nearest quarter hour. See 29 C.F.R. 785.48(b). Rounding policies are frequently used by employers in all industries, including the healthcare industry, so employees should make a point to understand their employer’s rounding policies to make sure they are being properly paid.
Travel time often goes unpaid in the healthcare industry. Although an employee who travels between work and home is not considered to be working, travel between jobsites during the workday is generally compensable and must be counted toward the total number of hours worked for purposes of determining the number of compensable hours worked. Many healthcare workers travel between jobsites throughout the workday and the time spent traveling between jobsites often goes unpaid in violation of the law. Healthcare workers should make sure that those times are included in the total number of hours worked to ensure they are being properly paid.
Training time is also another area where the healthcare industry often fails to properly compensate workers. Nearly all meetings, lectures and training programs, which healthcare workers are often required to attend, must be counted as hours worked for purposes of minimum wages and overtime pay. According to 29 C.F.R. § 785.27, only where such activities meet all of the following criteria, may such time be excluded from the total number of hours worked:
- Attendance is outside of employee’s normal work hours;
- Attendance is in fact voluntary;
- The activity is not directly related to the employee’s job; and
- The employee does not perform any productive work during the activity.
Unless each of those requirements are met, the time spent must be calculated as work time and the employee must be paid minimum wages and overtime pay (if applicable).
Due to the nature of work performed in the healthcare industry, hospital and nursing home workers are often interrupted while taking breaks to care for patients. Under the Fair Labor Standards Act, an employee may go unpaid if the employee receives a bona fide meal period during which the employee is completely relieved from duty. However, if an employee is interrupted and required to return to work or otherwise perform work-related tasks during a meal break, then the entire break period becomes compensable work time. Many employers setup their payroll to automatically deduct for a meal break whether or not it is actually taken and this will often result in violations of the law. For employees who regularly work more than 40 hours a week, this may result in significant overtime violations as a result of off-the-clock work.
Unauthorized overtime is often a point of contention between healthcare workers and their employers. Under federal law, employers must pay an employee for any time spent performing work if the employer knows or has reason to believe that the employee is continuing to work. See 29 C.F.R. § 785.11. Many employers have policies that all overtime must be approved ahead of time. However, the reality of the healthcare industry will often require overtime to be worked without prior authorization. Emergencies happen and certainly no one expects a worker to leave a patient in need to seek authorization before working overtime, so unauthorized overtime is an ever-present reality for healthcare workers. Therefore, although excessive unauthorized overtime may be grounds for punishment, unauthorized overtime must be paid if the employer knew or had reason to know that the employee was working.
In addition to off-the-clock issues discussed above, healthcare workers are often misclassified as exempt from overtime. Many Licensed Nurse Practitioners, Registered Nurses, Certified Nursing Assistants are classified by their employers are exempt employees who are not entitled to overtime compensation. While salaried Registered Nurses often meet the requirements for the professional exemption, Licensed Nurse Practitioners, Certified Nursing Assistants and other healthcare workers do not generally qualify as exempt professionals. See 29 C.F.R. § 541.301. Therefore, most healthcare workers below Registered Nurses (and even RNs who are paid hourly) are non-exempt and entitled to overtime compensation.
If you are a healthcare worker and have questions about whether you have been paid properly, contact an experience employment lawyer today for a free consultation.