Medical and healthcare employees are generally covered by the same overtime requirements that apply to all workers under the Fair Labor Standards Act (FLSA). If you work in these industries, it is imperative that you know and understand your right to overtime and your employer’s obligation to pay it. You should also understand related matters that are unique to these industries, such as mandatory overtime for extensive hours and whether an employee can be disciplined for refusing to work a certain number of hours. Although overtime can be complicated, we’re here to help ensure that you are paid fairly and that your rights are protected.
Exemptions in the Medical and Healthcare Industry
In general, all hourly employees must be paid time and a half for hours worked above 40 during a single work week. But the FLSA, along with various state laws, makes an exception for certain categories of workers. The medical and healthcare industry is one area in which various professionals may be exempt and therefore not entitled to overtime pay.
It’s important to understand that federal and state labor departments take these exemptions seriously and will rigidly apply them to ensure employers are not abusing them. Ultimately, it is up to the employer to ensure that any claimed exemptions are valid under the law. If you aren’t sure whether your employer should be exempting you from overtime pay, we can help.
The FLSA’s learned professional exemption is the broad category that is most commonly applied to medical and healthcare workers. All of the following criteria must be met for this exemption to apply:
- The employee must be compensated on a salary or fee basis (as defined) at a rate not less than $684 per week;
- The employee’s primary duty must be performing work that requires advanced knowledge, defined as work that is predominantly intellectual in nature and that requires the consistent exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning; and
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction
How the Professional Exemption May Apply
Considering the above standards, these are examples of how various medical and healthcare professionals may be considered under the FLSA:
Registered Nurses (RNs)
Registered nurses may meet the learned professional exemption if they are paid the requisite salary, supervise two or more employees, and can make hiring and firing decisions. However, RNs who are paid hourly will nearly always be entitled to overtime pay.
Licensed Practical Nurses (LPNs) and Licensed Vocational Nurses (LVNs)
LPNs, LVNs, and similar types of medical workers typically do not meet the criteria to be considered exempt learned professionals, despite their work experience and training. Having a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, so these workers are usually entitled to overtime.
Courts have determined that these healthcare workers are usually not exempt, especially if they are paid hourly instead of on a salary basis. The U.S. Department of Labor takes this same position because nurse practitioners do not practice medicine, as defined under FLSA regulations.
Utilization Management Nurses and Utilization Review Nurses
Also known as Medical Management Nurses, Nurse Reviewers, and Care Management Nurses, these workers typically do not meet the requirements to be considered exempt. Even if they are paid on a salary basis, their job duties usually disqualify them from the exemption. This is especially the case if the duties involve:
- Reviewing authorization requests
- Applying pre-set criteria to determine if the requested benefit, procedure, treatment, or equipment should be covered by insurance
These employees must be paid overtime unless they have completed four academic years of pre-professional and professional study in an accredited college or university that is approved by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association.
Physician assistants (PAs)
PAs generally meet the duties requirement of the learned professional exemption. They are not required to be paid overtime if the following criteria also apply:
- Successful competition of four academic years of pre-professional and professional study
- Graduation from a physician assistant program accredited by the Accreditation Review Commission on Education for the Physician Assistant
- Certified by the National Commission on Certification of Physician Assistants
This category includes sleep technologists (or technicians), lab technicians, and registered or certified medical technologists. Unless they have successfully completed three academic years of pre-professional study in an accredited college or university plus a fourth year of professional course work in a school of medical technology approved by the Council of Medical Education of the American Medical Association, these employees will generally not meet the duties requirements of the learned professional exemption.
Physical and occupational therapy assistants
Because they do not meet the educational requirements of the learned professional exemption, therapy assistants are usually entitled to overtime pay.
The 8 and 80 Exception to Overtime
Hospitals and other healthcare facilities may elect to use the 8 and 80 method of paying overtime. Under this system, and pursuant to an agreement or understanding between the employer and employee, the worker must be paid time and a half pay for any hours worked over 8 in a workday and 80 in a 14-day period. This is an exception to the general rule that overtime is computed based on a standard seven-day workweek.
Common Overtime Violations in the Medical and Healthcare Industry
With respect to non-exempt medical and healthcare workers, employers routinely commit the following overtime violations:
- Misclassification of an employee as exempt (under the learned professional exemption or another one)
- Failure to pay overtime to workers under the 8 and 80 system
- No agreement or understanding in place to apply the 8 and 80 system
- Failure to total all hours worked in different departments or facilities when determining the number of overtime hours
- Deducting for meal breaks while the employee is still performing work duties, including being “on call”
- Working off the clock (before or after a shift) without crediting the work towards overtime hours
- Failure to include shift differential, bonuses, or on-call fees in calculating an employee’s regular rate of pay
Mandatory Overtime for Medical and Healthcare Workers
A question that employees frequently ask is whether their employers can require them to work overtime. The FLSA does not regulate the maximum number of hours that nurses and other healthcare professionals must work. Therefore, you can be fired or otherwise disciplined if your employer requires overtime and you refuse to work it. While an employer can, in most situations, require that you work overtime, you must be compensated at a premium rate of at least time and a half your regular hourly rate for all overtime hours worked.
State laws are somewhat different, and the reasoning is fairly straightforward: overworked healthcare professionals could undermine patient safety. Nurses and other medical workers are known for working long shifts, but too much work could lead to fatigue, inattentiveness, and even malpractice, all of which jeopardize the health and well-being of patients. Whenever there is a difference between state and federal law, the rule that is most beneficial to the employee applies.
Several states currently limit or prohibit mandatory overtime for these workers, including:
- New Hampshire
- New Jersey
- New York
- Rhode Island
- West Virginia
Note that there are usually exceptions to the law for public health emergencies, natural disasters, and other exigent circumstances. States typically also require a rest period following any mandatory overtime that is permitted. For instance, in Maine, a nurse must be permitted at least 10 consecutive hours of time off following a mandatory work period that is allowed under the law.
Have Questions About Overtime in the Medical and Healthcare Industry? We Have Answers
Are you being cheated out of overtime pay because your employer has misclassified you as exempt? Has your overtime pay been miscalculated, or have your work hours not been properly credited to you? For the answers to these questions and more, turn to the legal professionals of The Lore Law Firm. Fill out our free and confidential client intake form to get started.