Various lawsuits have been filed, from New York to Texas to California, claiming that hospitals and nurse-staffing agencies are violating the overtime policies of the Fair Labor Standards Act (FLSA). The claims of the nurses include not only failure to pay overtime for all hours worked over forty in one week or eighty hours in two weeks, depending on how the pay period is calculated, but also claims of improper time deductions for breaks and meals that were not actually taken by the nurses.
Under the FLSA, Registered Nurses (RNs) who are paid on an hourly basis are entitled to overtime wages at a rate of one and one-half times their regular hourly pay. However, because RNs are technically subject to the ‘learned professional’ exemption of the FLSA, if an RN is paid a salary of more than $455 a week, then he or she will be considered exempt from receiving overtime wages. Conversely, all Licensed Practical Nurses (LPN) and Licensed Vocational Nurses (LVN) are entitled to overtime regardless of whether they are salaried or hourly employees. The only exemption from overtime under the FLSA that may apply to these types of nurses is triggered if they provide certain types of domestic assistance or service to patients in their homes. However, this exemption is entirely dependent on the exact type of services rendered by the ‘home health aid.’
In addition to failing to pay overtime hours, some employers, especially staffing agencies, automatically deduct break and meal time from a nurse’s weekly hours despite the fact that the nurse has not taken such breaks, generally because they are too busy to do so. Courts have determined that these policies, which require the nurse to inform the employer that the break was not taken, are in violation of the FLSA. In fact, it has been established that it is the direct responsibility of the employer to ensure that such break periods were actually taken before deducting the time from the nurse’s pay.
If you feel that your employer has not been paying you correctly for overtime or has improperly deducted work hours for breaks that you did not take, then please contact Pogust Braslow & Millrood for a free consultation.