Of the 1.1 million workers living in Brooklyn, NY, 25.8% work in education, healthcare, and social services. In other words, the healthcare industry is one of Brooklyn’s largest employers. If you are one of Brooklyn’s many nurses and other healthcare professionals, it is important to be mindful of the specific risks associated with your profession when it comes to the possibility of being misclassified by your employer as ineligible for overtime pay.
On June 20, 2013, an Ohio federal court granted a bid for collective action certification on behalf of nurses employed by Liberty Health Care Corporation. In his opinion, Judge David A. Katz rejected a strict reading of the Supreme Court decision in Walmart v. Dukes, a discrimination case which tightened the requirements needed to bring a class action lawsuit under Rule 23 of the Federal Rules of Civil Procedure. The Dukes ruling, however, is typically not an obstacle to overtime pay class action lawsuits which are better suited to the class action mechanism because they usually involve common factual questions.
In Ribby v. Liberty Health Care Corporation, the nurses allege that Liberty automatically deducted meal breaks from their paychecks even when they were forced to work during that unpaid time. This class action has been brought on behalf of non- exempt registered nurses, licensed practical nurses, and state tested nursing assistants. These nurses will now seek back pay of overtime wages under the FLSA.
The Ribby matter demonstrates the reality health care or hospital employment – many times doctors, nurses, hospital administrators, technicians, and other hospital employees are forced to work “off the clock” during busy periods. More often than not, hospital employees are knowingly forced to work through lunch breaks by hospital administrators, a practice which usually pushes a full time employee over 40 hours for a week thus entitling him or her to overtime pay.
Aside from forcing hospital staff to work “off the clock,” hospitals and health care employers often misclassify certain types of nurses as exempt from overtime pay when, in fact, they are eligible for it. Under the FLSA, the following criteria are used to determine if a nurse is exempt from overtime wages as a learned professional:
- The employee is compensated on a salary or fee basis at a rate not less than $455 per week;
- The employee’s primary duty is the performance of work requiring advanced knowledge, such as work that is predominantly intellectual in character and 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.
Typically, registered nurses are exempt, unless they are paid an hourly wage. Nurse practitioners are also generally exempt due to increased training and skill that is required, as well as supervising nurses who have managerial duties. Nurses that are not exempt can include licensed practical nurses and state tested nursing assistants because an advanced academic degree is not required.
If you are a Brooklyn or New York City nurse or healthcare employee whose job duties do not meet the requirements of the learned professional exemption and you are not receiving overtime pay, contact a lawyer who specializes in wage and hour laws to determine if you should be receiving overtime pay.