Various “Clinicians” employed by Gentiva including registered nurses, physical therapists and occupational therapists, have filed suit under the Fair Labor Standards Act (FLSA) claiming that they have been misclassified as “exempt” professionals are owed overtime back-wages. This claim has now been conditionally certified as a collective action by the court and a notice will be issued to the class members.
The basis for the FLSA claim is that Gentiva paid its Clinicians using a pay per-visit plan (the “PPV Plan”). Under the PPV Plan, Clinicians receive a “visit fee” for each visit to a patient’s home. However, for “non-visit” work, such as conferences, training time, staff meetings, and orientations, the Clinicians received a “flat rate.” The flat rate is a function of visit units and the amount of time dedicated to the non-visit work. For example, under the scheme, 0.5 – 1.5 hours of training equals 1 visit unit. This “flat rate” is what the employees claim is hourly pay for the non-visit work they performed.
Gentiva does not pay an overtime premium to its Clinicians and claims that its Clinicians are professional employees who are exempt from the FLSA’s overtime compensation requirements.
Under the FLSA, exempt professional employees may be paid on a “fee basis” without compromising the exemption; however, the exemption is voided if an employer pays that employee on both a fee basis and an hourly basis.
Plaintiffs allege that under the PPV Plan, Clinicians are paid on both a fee basis and hourly basis, which results in an unlawful hybrid plan that abrogates the Clinicians’ professional exemption – therefore, they are not subject to the FLSA’s exemption for professionals and are owed overtime for all hours worked over 40 in a week.