Are you an RN, LPN, or STNA? Do you provide direct, in-home healthcare services? If so, you may not be receiving all the wages you are entitled to. This article sets forth common minimum wage and overtime violations among healthcare professionals.
Healthcare workers have always provided an essential service to the public, but now more than ever, your services are critically important to protect our health and well-being. However, despite the long hours you work and the value of your services rendered, healthcare workers are often vulnerable to wage violations. You work hard and risk your own life to protect ours each and every shift, and your Columbus Wage and Hour Attorneys at Mansell Law will fight for your right to receive the wages you deserve.
The Fair Labor Standards Act (“FLSA”) governs the payment of your wages. The FLSA requires that you be paid at least the federal minimum wage of $7.25 per hour(1) for all hours worked, and it requires that eligible employees be paid overtime for all hours worked over 40 per workweek. Some of the most common wage violations among healthcare professionals are set forth below.
Overtime Violation: Not Including Shift Differential in Overtime Rate
If you are paid by the hour and have multiple rates of pay, either because of a shift differential or because you perform multiple jobs, this must be taken into account when calculating your regular rate of pay for purposes of computing overtime owed. To calculate your regular rate of pay with your shift differential, your total pay for your 7-day workweek, including your base rate and shift differential pay, is added together and divided by the total number of hours you worked. Your employer must then pay you one and one-half times this regular rate for all hours you work in excess of 40 that workweek.
Example: Bob works 45 hours during a 7-day workweek. He works 25 hours at his base rate of $15.00 per hour, and he works 20 hours at his shift differential rate of $17.00 per hour. Bob’s total pay for the week is $715.00, so his regular rate of pay for this 45-hour week is $15.89. One and one-half times his regular rate of $15.89 is $23.84, his overtime rate for the week.
Overtime Violation: Misapplication of Companionship Exemption
Some direct support workers who provide in-home services to clients are “exempt” from the FLSA’s minimum wage and overtime laws, meaning their employer need not adhere to the FLSA’s minimum wage and overtime laws. This is called the “companionship exemption,” and it applies to workers who are employed to engage the client in “social, mental, and physical activities, such as conversation, games, and other activities” as well as being present with them in the home or accompanying them on errands.(2)
However, this exemption is often misapplied to workers who do NOT meet its requirements. First, the companionship exemption requires that the worker be directly employed by the client’s family or household. If you work for a third-party staffing company that provides in-home workers to clients, then this exemption does not apply to you.
Second, this exemption also does not apply to you if you provide “care” services to your clients during more than 20% of your workweek. “Care” services are defined to include assisting with dressing, grooming, feeding, bathing, toileting, preparing meals, driving, house cleaning, assisting with taking medication, managing finances and arranging medical care, and performing other medical services that would typically be performed by someone who is certified or licensed to do so. If you perform any of these duties on more than an occasional basis, then the companionship exemption likely does not apply to you.
Do you travel between multiple job sites to provide care for patients during a single shift? If so, then the time you spend traveling between client sites during your shift must be compensated. For example, if you care for two different clients at two different locations during your workday, then your employer generally cannot require you to clock out to travel to Client 2 after you have finished caring for Client 1. However, your employer need not compensate your travel time from your home to your first location of the day, or from your last location of the day back home.
The FLSA does not require employers to offer designated break time to employees, but if your employer chooses to do so, it must follow the federal and Ohio break laws. Generally, break periods of 20 minutes or less must be paid, and your employer cannot require you to clock in and out for these short breaks. Breaks of 30 minutes or more can be unpaid, but you must not be required to perform any work during this timeframe. If you are required to answer phone calls, assist patients, remain “on-call” or otherwise perform any work if the need arises during this break time, then you must be paid for this time.
Time Clock Rounding
If you are paid by the hour, your employer may require that you clock in and out for your shifts using a time clock. In this situation, your employer may employ a time clock rounding policy that rounds your in and out punches to the nearest tenth or quarter of an hour. While this policy is not inherently unlawful, if the rounding policy systematically favors the employer, consistently resulting in a loss to you over time, then the policy violates the FLSA.
Every situation is different, and a thorough review of your case is likely necessary to determine whether you are owed wages. Healthcare workers work tirelessly to ensure our health and safety, and you deserve to be properly compensated for your efforts. If you believe you are owed wages, or if you have other questions about your employment, reach out to us today to schedule a FREE consultation.
Columbus Wage and Overtime Lawyers
(1) In Ohio, the minimum wage is currently $8.70 per hour.
(2) See 29 U.S.C. § 213(a)(15).