A recent case against an urgent care facility in Texas has resulted in a determination that nurse practitioners were not medical professionals and are not exempt from FLSA overtime rules, unless they received a salary rather than hourly pay. Because the undisputed evidence established that they were hourly employees, these nurse practitioners were entitled to overtime pay.

The result in this recent case is consistent with prior courts that have repeatedly held that nurse practitioners are not exempt as “medical professionals” and are entitled to overtime pay, particularly where they are being paid hourly instead of on a salary basis. This has also been the position of the U.S. Department of Labor, as stated in an opinion letter that concluded that nurse practitioners do not “practice medicine” as the Fair Labor Standards Act understands that term.

The issue of whether nurse practitioners (NP) and physician assistants (PA) employees, also referred to as advanced practice providers (APPs), qualify for overtime under the FLSA has been hotly debated for years. Due to scheduling and business considerations, APPs have commonly been paid on an hourly basis in urgent care and other clinical settings. While it may be more cost effective to pay such healthcare workers on an hourly basis instead of a salary basis due to unpredictable scheduling demands, this does not alter the legal requirements regarding overtime pay. If the employer decides to pay APPs on an hourly basis, that is legal, however, it must then pay time and one-half whenever they work overtime.

The term “employee employed in a bona fide professional capacity” means “[a]ny employee who’s the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof…

In an important 2006 case, PAs and NPs sued their employers, seeking back wages and liquidated damages for alleged violations of the Fair Labor Standards Act (FLSA). The PAs and NPs provided healthcare services and were paid hourly at a flat rate for all hours worked, including overtime. They alleged that the employers violated the FLSA by failing to pay time-and-a-half compensation for overtime. The employers argued that the PAs and NPs qualified for the exemption as bona fide professionals because they practiced medicine or a branch of medicine within the meaning of the regulation. The only issue was whether NPs and PAs hold a license permitting, and actually engage in “the practice of…medicine or any of [its] branches.”

The Court noted that if the NPs and PAs “practice medicine”, they didn’t need to satisfy the salary-basis test to qualify for the exemption and the employer could legally pay an hourly wage and deny overtime pay. But if the PAs and NPs don’t “practice medicine”, they don’t fall within the exemption, they must meet the salary-basis test (cannot be paid hourly) and they are eligible to receive overtime pay.

The Court looked to the Department of Labor’s opinion letter, the Bureau of Labor Statistics’ Occupational Outlook Handbook, and supporting briefs, which all supported the conclusion that nurse practitioners (NP) and physician assistants (PA) must be paid on a salary basis to be exempt from the overtime pay requirements of the FLSA.

Have You Been Unfairly Classified as Exempt?

Because of the strict time limits imposed by the overtime pay laws, procrastination can be costly. If you have any doubts as to your entitlement to overtime pay as a nurse practitioner, physician assistant or other healthcare worker, contact the experts at The Lore Law Firm for a free and confidential review.

Call 1-866-559-0400 or submit your information using our convenient Case Evaluation form for a FREE and CONFIDENTIAL review of your circumstances – because time is money.