Non-Exempt Nurse Employees

Crm-Sitting-GreyNursing overtime lawsuits are on the rise. Some overtime lawsuits for nurses have been based upon missed meal breaks. Other nurses overtime lawsuits received settlements for work before and after shifts. Across the US, millions of dollars in settlements have been paid out for nurses wage and hour lawsuits .

Many hospitals and residential health care, assisted living and group homes do not pay proper overtime to nurses and other employees. Health care industry pay practices are the target of 250 new Labor Department wage-and-hour investigators (an increase of one-third), as reported by The New York Times. Fewer than 36 percent of employers investigated in New York were in compliance with federal overtime law.

Non-exempt employees must be paid for all hours worked, including work performed before or after shifts, during scheduled meal breaks, meetings, and paid training. Hours worked include hours worked at all facilities and departments or on-call, and the regular rate should include shift differential, bonuses or on-call fees.

Non-exempt employees are generally entitled to overtime at a time-and-a-half rate, including:

  • Registered nurses (RN) who are paid on an hourly basis. (However, registered nurses on a salary of at least $455 per week who are registered with a state examining board are typically ineligible for overtime pay under the learned professional exemption.)
  • Most licensed practical nurses (LPN), as they do not need a specialized advanced degree, and therefore do not qualify for the professional exemption.
  • Most nursing home and assisted living employees who are paid on an hourly basis and who work more than 40 hours a week (rare exceptions exist).Section 13(a)(1) of the FLSA exempts bona fide executive or administrative workers or the “learned professions” from overtime pay. Exempt status is determined by an employee’s actual work activities. Employers must ensure an employee meets the exemption requirements, including salaried or fee pay of not less than $455 per week. Payment of salary and per patient or hourly pay may compromise exemption, and fees should not be based on time taken to complete a task.Registered nurses paid hourly should receive overtime pay, as should licensed practical nurses. However, registered nurses registered by a state examining board generally meet duty requirements to be exempted as learned professionals, if paid a salary of $455 or more a week.

    The learned professional exemption specifies that a nurse’s primary work duty must require advanced knowledge in science or learning acquired through specialized and prolonged intellectual instruction, and be intellectual work that requires consistent discretion and judgment.