Building upon a growing body of case law finding automatic-deduction meal break claims are not suitable for class or collective action treatment, an Ohio federal judge decertified a collective action against a national system of medical and rehabilitation care facilities by registered nurses, licensed practical nurses, certified nursing assistants, and admissions coordinators who claimed they were not paid for missed or interrupted meal breaks that were automatically deducted from pay. In Creely v. HCR ManorCare, Inc., Littler attorneys convinced the court that the employees’ experiences were too diverse to allow the case to proceed as a collective action under the Fair Labor Standards Act. To learn more about the decision, see Littler's Healthcare Employment Counsel blog.
On August 6, 2012, Governor Deval Patrick of Massachusetts signed into law Senate Bill 2400, "An Act improving the quality of healthcare and reducing costs through increased transparency, efficiency and innovation." The law is primarily intended as a healthcare cost containment measure and has received some fanfare for that aspect. What has received considerably less attention are two provisions of the law that apply to hospitals as employers, one of which prohibits mandatory overtime for nurses. To learn more about the law and its potential implications for hospital employers, please continue reading Littler's ASAP, Massachusetts Healthcare Bill Bans Mandatory Overtime for Nurses and Limits Spending to Oppose Unionization, by John Doran and Carie Torrence.
New Jersey Appellate Court Defers to State Wage and Hour Division's Longstanding Interpretation of Exemption
By Alison Andolena
On November 16, 2011, the New Jersey Appellate Division affirmed a finding that registered nurses who were paid on an hourly basis were exempt from the overtime requirements of the New Jersey Wage and Hour Law (“NJWHL”), even though the regulation applicable at the time only extended the “professional” exemption to employees compensated on a “salary or fee basis.”
In Anderson v. Phoenix Health Care, Inc., the court explained that while the regulation specifically provides that exempt professionals must be paid on a salary or fee basis, for the past 40 years the New Jersey Division of Wage and Hour Compliance’s enforcement policy had been “consistently administered” to extend the exemption to professionals paid on an hourly basis so long as their total weekly compensation exceeded the minimum set forth in the regulation. Deferring to the Division’s longstanding interpretation, the court stated that a change to such a longstanding policy must come from an amendment of the regulation or through the legislative process. In addition, the court found that the good faith exception would have applied even if the exemption was held not to apply to hourly-paid nurses.
The long-term import of this decision for healthcare employers is unclear. As noted by the court in a footnote, on August 15, 2011, the regulation at issue in the case was superseded. Since the parties did not argue that the newly-adopted regulations applied, however, the court decided that it “need not determine whether nurses similarly situated as plaintiffs will in the future be entitled to overtime compensation.” The recently-enacted regulation adopts the provisions of the federal regulations regarding overtime exemptions (with certain exceptions not applicable here). Unlike the previous New Jersey regulations, the federal regulations contain detailed definitions of “salary basis” and “fee basis.” Further, Fact Sheet #17N by the U.S. Department of Labor's Wage and Hour Division advises that in order for nurses to qualify for the learned professional exemption, they “must be compensated on a salary or fee basis (as defined in the regulations).”
Thus, the most important lessons from Anderson are: (a) employers must remain vigilant in consistently monitoring both federal and state wage and hour laws; and (b) employers who are relying on an agency’s interpretation of applicable exemptions should be aware that courts may not always defer to the agency’s interpretation. While the employer in this case benefited from the court’s deference to the New Jersey Division of Wage and Hour Compliance’s longstanding interpretation of the exemption, other courts in other contexts have refused to defer to agency interpretations when they do not find support in the express terms of the statute or regulation.
On July 7, 2010, Alaska enacted a law restricting the amount of overtime nurses can work at private and public health care facilities. Many of the law’s provisions do not take effect until 2011. The law does provide, however, that a health care facility must file a report with the Alaska Department of Labor and Workforce Development’s Division of Labor Standards and Safety prior to February 1, 2011. The report, which covers the time period from July 2010 through December 31, 2010, must identify, for each nurse employed by the health care facility or under contract with the health care facility, the number of overtime hours worked and the number of hours the nurse was on call. The Department just recently made the required form available on its web site.
Health care facilities whose nurses have not worked overtime hours and have not been on call during the reporting period may simply indicate on the form that there are no reportable hours.
This entry was written by Christopher Kaczmarek.
Texas will soon join a growing list of more than a dozen states that have imposed mandatory overtime restrictions on hospitals, including California, Connecticut, Illinois, Maryland, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Washington, and West Virginia. Effective September 1, 2009, Texas hospitals can not, with limited exceptions, require registered or licensed vocational nurses to work mandatory overtime, nor can hospitals use on-call time as a substitute for mandatory overtime. Nurses are expressly authorized to refuse to work mandatory overtime and any such refusal does not constitute patient abandonment or neglect. Nothing in the law prohibits nurses from voluntarily working overtime.
Mandatory overtime means a requirement that a nurse work hours or days that are in addition to the hours or days scheduled, regardless of the length of a scheduled shift or the number of scheduled shifts each week. Pre and post-shift documentation and communication activities regarding a patient’s status, as well as prescheduled on-call time, are not included in making an overtime determination.
The new law contains four exceptions under which hospitals may require nurses to work mandatory overtime, including natural disasters in the hospital’s county or a contiguous county; governmental declarations of emergency in the hospital’s county or a contiguous county; emergencies or other infrequent, unforeseen events that hospital management could not have prudently anticipated that increase staffing needs; and ongoing medical or surgical procedures that necessitate the nurse’s continued attendance for patient care reasons. In the case of emergencies or unforeseen events, hospitals must first, to the extent possible, make a good faith effort to satisfy staffing needs through voluntary overtime, including calling per diems and agency nurses, assigning floats, or requesting an additional day of work from off-duty personnel.
Hospitals are prohibited from suspending, terminating or otherwise disciplining or discriminating against a nurse who refuses to work mandatory overtime. Interestingly, the bill originally introduced created a retaliation cause of action that allowed any nurse retaliated against for refusing to work mandatory overtime to recover actual and exemplary damages, court costs, and reasonable attorney’s fees. The initial bill also permitted terminated nurses to obtain reinstatement. The remedial provisions authorizing this new retaliation cause of action and related remedies were, however, deleted from the final bill.
The law directs the Executive Commissioner of the Texas Health and Human Services Commission to adopt implementing rules for the Department of State Health Services no later than January 1, 2010. We will update you when those rules become publicly available.
This blog entry was authored by Sherry L. Travers.