Over the past several years, particularly during surges in COVID and COVID-related illness and hospitalizations, our nations nurses are working longer hours than ever. Many salaried nurses do not receive extra pay for working more than 40 hours in a week, as their employers classify them as exempt from the overtime requirements under the federal law governing overtime pay – the Fair Labor Standards Act, or “FLSA.” However, not all nurses qualify for this exemption, and many nurses are being denied overtime pay they have earned because their employer treats them as exempt even when they are not.
Which nurses are exempt from overtime?
Many employers treat their nurses as exempt, relying on a provision of the FLSA that says employers do not have to pay overtime pay to employees who are “Learned Professionals.” To be a Learned Professional, the employee must:
- be compensated on a salary or fee basis at a rate not less than $684 per week;
- perform work, as their primary duty, 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.
The Wage and Hour Division of the Department of Labor states that Registered Nurses are generally properly compensated as exempt and not entitled to receive overtime pay, as long as they are paid a salary of at least $684 per week, and that their salary does not change depending on the number of hours they work.
However, just because a nurse is an R.N. does not mean he or she is automatically exempt from the overtime requirements. To be exempt, the nurse’s duties still must require the consistent exercise of discretion and judgment. In other words, their duties must require them to regularly use their unique R.N. skills and qualifications. If a licensed practical nurse or similar healthcare employee could perform the same job duties that the R.N. performs, then the exemption will not apply even if the nurse happens to be an R.N.
As such, LPNs 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. Those nurses are entitled to overtime pay whether they are paid a salary, hourly, or on a fee basis.
What do I do if I feel I should be getting paid overtime, but my employer does not do so?
Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.