Health Care Employees

In 2021, the Department of Labor (DOL) identified the Health Care Industry as one of the industries most likely to violate the rights of workers with respect to pay. The federal law that applies to most employers in the country is the Fair Labor Standards Act (FLSA). Employers who fall under the FLSA must pay their employees at least minimum wage and at least time and one-half for all hours over 40 in a given workweek unless the employer can prove that the employee falls under one of the FLSA’s exceptions.

Despite the fact that health care workers were the backbone of our country’s survival through COVID, health care employers routinely violate the FLSA when it comes to paying their employees. Meanwhile, health care CEOs, who were not in the ER, ICU, or food services during COVID, secured monumental bonuses. Martin & Martin health care employee attorney, Tom Martin, spent 28 years as a hospital executive and is used to fighting for what’s right for health care employees. And, as an attorney, for the past 15 years, Tom has continued to advocate for his clients who are owed overtime.

Workers in the Health Care Industry at risk of not being paid properly include all workers related to the health care facility, including, but not limited to, nurses, janitorial staff, food services, security, administrative personnel, and workers classified as independent contractors. The pay plan for these workers ranges from a 14 consecutive day plan (8 & 80 Compensation Plan), hourly, salary, and contracted as an independent contractor.

In some health care facilities, the employer and employee may mutually agree to use a 14 consecutive day calendar for purpose of FLSA overtime as opposed to the typical seven-day workweek. This is also known as the 8 & 80 Compensation Plan by the DOL. However, there must be an agreement between the worker and the employer to use this calculation.

The Law: The FLSA has a specific section, 207(j), that allows a 14 consecutive day schedule in hospitals and health care establishments if it is agreed upon by both the employer and employee. Section 207(j) explains how to calculate overtime for these health care worker employees. The law states, in part, that:

• No employer engaged in the operation of a hospital or other establishment primarily engaged in the care of the sick, aged, or mentally ill who reside on the premises is in violation of the FLSA if, pursuant, to an agreement or understanding between employer and employee before the employee performs the work, a work period of 14 consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime compensation and if, the employer pays time and one-half times the regular rate for any hours in excess of eight hours in a workday and in excess of 80 hours in the 14 day period.

Cliff Notes: For hospitals and similar facilities, the employer and employee can agree to 14 consecutive days as the time period in which to determine overtime hours. Under such agreement, the employer must pay the employee time and one-half for all hours over eight in a workday and all hours over 80 in the 14 day period, thus the name “8 & 80 Compensation Plan.”

Examples: The Employee and the Employer agree to a 14 consecutive day time period to determine overtime pay. The Employee works M-F, nine hours per day. The Employer pays the Employee $20 per hour. Therefore, the Employee works 90 hours during the 14 days. So, the Employer must pay the Employee time and one-half ($30) for hours 81-90.

If, however, the Employee only works M, W, & F, nine hours per day totaling 54 hours during the 14 days, the Employer must pay the Employee time and one-half ($30) for one hour each day. Even though the employee does not work more than 80 during the workweek, they work more than eight hours per day.

Hourly Workers: If you are an hourly worker in the Health Care Industry, the FLSA is simple. Without question, you are entitled to pay for all hours worked and you are entitled to time and one-half for all hours worked over 40 in a given workweek. For a more detailed discussion of compensation for hourly workers, see the firm’s Hourly Employees’ page. Hospitals and health care facilities violate these simple rules in several ways:

• Requiring workers in the Health Care Industry to continue to perform job duties during their lunch break but setting the company’s time clock to automatically deduct one hour for lunch;
• Requiring employees to perform work prior to clocking in and/or after clocking out;
• Requiring employees to perform job duties like remain on-call or check and respond to emails and telephone calls while at home without pay; and
• Not paying employees time and one-half for all hours over 40 in a workweek.

Salaried Health Care Workers: If you are a salaried worker in the Health Care Industry, you are entitled to overtime pay unless your employer can prove that your job duties fall under a specific FLSA exemption. Many health care employers set a policy of not compensating overtime to any salaried employees. This is illegal. The FLSA requires health care employers to compensate their salaried employees overtime wages for all hours over 40 in a workweek unless the employer can prove that the employee falls under one of the FLSA’s exemptions.

The most common FLSA exemptions that health care employers attempt to use are the executive exemption and the administrative exemption. To determine whether a salaried worker in the Health Care Industry falls under one of these exemptions, courts look at a variety of details of the job, including:

• Whether the worker supervises other employees, whether they hire/fire/discipline other employees;
• Whether the worker makes significant company decisions like signing significant financial documents and contracts;
• Whether the employee implements legal compliance measures;
• Whether the worker uses their discretion and independent judgment in performing their duties;
• Whether the worker’s job duties are preset written duties that require the worker to follow set policies, procedures, practices, etc. without independent judgment or discretion to act differently; and
• Whether the employer docks the worker’s pay for time off.

To learn more about the requirements for pay to salaried workers, see the firm’s Salaried Employees’ page.

Health Care Industry Workers Classified as Independent Contractors: The FLSA requires employers to compensate “employees” at least minimum wage for all hours worked and at least time and one-half for overtime hours. The term “employees” includes workers who have signed independent contractor agreements but meet the FLSA’s definition of “employee.” Many employers in the Health Care Industry have workers sign independent contractor agreements making the workers believe that they are not entitled to overtime pay for all hours over 40 hours in a given workweek. However, the law is clear. A worker may not sign away their rights to overtime pay by signing an independent contractor agreement, if that worker actually meets the definition of employee under the FLSA.

There are a number of factors that courts take into consideration when determining whether a worker is an employee or independent contractor. For a more detailed discussion, see the firm’s Independent Contractor page. Some of these factors include:

• Whether the worker creates their own schedule or whether the employer creates it;
• Whether the worker is permitted to hire their own workers to perform the job;
• Whether the worker is permitted to work for competitors of the employer;
• Whether the duration of the relationship is short or long term;
• Whether the worker is permitted to leave upon completion of the day’s work;
• Whether the worker performs the work under the supervision of the employer;
• Whether the worker is subject to the employer’s rules, policies, procedures, practices; and
• Whether the worker is subject to discipline.

The misclassification of workers as independent contractors as opposed to employees is a highly litigated area of law because many workers are made to believe that they are not entitled to overtime pay if they sign an independent contractor agreement.

The health care industry is an industry identified by the DOL as one that violates the FLSA most often. Workers in the health care industry are owed hundreds of millions of dollars in lost wages, including unpaid overtime because health care employers fail to properly pay their workers overtime as required by the FLSA. Nobody is better at fighting for your unpaid overtime as a worker in the health care industry than attorney Tom Martin who worked in the health care industry for 28 years prior to becoming a lawyer and he fought to ensure that his workers were paid properly and fairly.

Whether you are an hourly worker, salaried worker, independent contractor, or whether you agreed to a 14 consecutive day schedule, the overtime attorneys at Martin & Martin would be happy to speak with you in a free confidential consultation to determine whether you are paid properly. Attorneys Tom Martin and Kimberly Martin will look at how you are paid as well as your job duties compared to the FLSA’s overtime exemptions and current caselaw and tell you whether you are being paid properly or if you are entitled to unpaid wages including unpaid overtime.

If you are a worker in the health care industry, regardless of the department, pay method, or classification as employee vs. independent contractor, and are interested in determining whether your health care employer pays you properly under the FLSA, the overtime attorneys at Martin & Martin welcome the opportunity to speak with you. For a free consultation use the firm’s Contact Us form or call the firm directly.