It is common knowledge that nurses work long hours. In fact, a twelve hour shift is relatively common for most nurses, if not standard. However, an overworked and fatigued nurse on duty is a serious liability. Despite this, many states permit employers in the healthcare field to require nurses to work overtime, sometimes even over the nurse’s objection. In recognition of this danger posed by this type of employment scenario, Rep. Robert Spague of Ohio introduced house bill 456 to ban Ohio hospitals from requiring nurses to work mandatory overtime. Currently, 18 other states have passed similar bills that prevent nurses from being scheduled to work beyond their regularly scheduled hours.
The Ohio Hospital Association opposes the bill, primarily on grounds that the bill fails to appreciate the complexity of hospital staffing. They released a statement saying the proposed bill “improperly assumes that all nurses share the same skill sets and are simply interchangeable parts in the treatment of patients.” Furthermore, “hospitals must have the flexibility to respond to the dynamic state of patient needs and focus on a variety of factors when determining staffing levels, while always keeping patient safety at the core of the business.”
On the other hand, the Ohio Nurses Association, who are advocates for the bill, point out that many nurses work 12-hour shifts on successive days without lunch breaks. It has been argued by many that despite the arguments advanced by the opponents of the bill, the fact is that mandatory overtime is nothing more than a temporary fix to nursing shortages, which puts the patient’s safety at risk and compromises the wellbeing of the nurse.
Healthcare Employers’ Failure to Properly Pay Wages
The Department of Labor (DOL) has recognized that only certain nurses are exempt from the overtime protections of the FLSA and that an employer must meet all of the requirements of the learned professional exemption test in order to properly classify a nurse as exempt.
The FLSA requires that all non-exempt employees be paid overtime premiums at one and one half times their regular hourly rate for all hours worked over 40 in a single workweek. However, Section 13(a)(1) of the FLSA provides an exemption for employees employed as bona fide learned professionals. This is the exemption that may apply to nurses.
To qualify for the learned professional employee exemption, all of the following criteria must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455* per week;
- The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring 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.
Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate state examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.
Licensed practical nurses and other similar health care employees, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and they are entitled to overtime pay.
The DOL issued Fact Sheet #17N to address the applicability of the FLSA to nurses, which is outlined above and can be found at https://www.dol.gov/whd/overtime/fs17n_nurses.pdf.
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