Kansas City Employment Lawyer Blog

Hospitals, nursing homes and other health care providers often do not pay employees overtime under the "8 and 80" rule that can apply to health care employees. Some health care employers, however, apply the "8 and 80" when it is unlawful to do so. The result is that affected employees are entitled to back pay for the unpaid overtime premium.

Federal wage and hour laws generally require an employer to pay an overtime premium to an employee for work in excess of 40 during a workweek. There is, however, an "8 and 80" exception that can apply in very limited circumstances to certain health care employees. If all of the requirements of the "8 and 80" rule are satisfied, an employer can pay an employee straight time for 80 hours worked during a two-week period, even if the employee worked more than 40 hours during one of the two weeks. Absent the "8 and 80" rule, the general rule would apply so that the employee would be entitled to time and a half for hours worked in excess of 40 during any workweek.

The "8 and 80" rule, however, applies strictly under specific conditions. First, only certain health care providers, such as hospitals and other in-patient facilities, are allowed to use it. Second, the employer must expressly inform the employee that the employer will use the "8 and 80" method of pay, and the employer must utilize it consistently, not just during weeks the employer can comply with its strict requirements. Third, the "8 and 80" rule only applies to 8 hour work shifts and to 80 hours during a two-week period. Thus, if the employee works any 12 hour shifts, or double-shifts of 16 hours during any day of the workweek, the "8 and 80" exception to overtime does not apply, and the employee is entitled to time and half for all hours over 40 during that workweek. Also, even if the "8 and 80" rule applies, the employee is entitled to the time and half overtime premium for all hours in excess of 80 during the two-week period.

A unanimous Supreme Court ruling was handed down yesterday. Employers can be sued if they retaliate against a relative or close associate of a worker who filed a discrimination claim. Retaliation is when employers punish a worker for complaining about discrimination.

In 2002 Miriam Regalado filed a sex discrimination complaint with the Equal Employment Opportunity Commission against her employer, Acerinox SA's North American Stainless. Three weeks after the commission contacted the employer as part of the investigation her then-fiancé, Eric Thompson, who also worked for North American Stainless, was fired.

Mr. Thompson sued, alleging that he was fired in retaliation for Ms. Regalado's complaint under Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination as well as retaliation for complaining about discrimination.

The case was originally thrown out by The Sixth U.S. Circuit Court of Appeals in Cincinnati. The Court's reasoning was that Mr. Thompson could not sue because he had not engaged in an activity protected by Title VII, such as complaining about discrimination.

For the record, North American Stainless said in its brief that Mr. Thompson was fired for poor performance and writing a memo "derogatory to North American Stainless' management practices."

The Supreme Court found that the anti-retaliation provision covers "a broad range of employer conduct" that could deter "a reasonable worker" from objecting to discrimination. Writing for the Supreme Court, Justice Antonin Scalia wrote, "We think it obvious that a reasonable worker might be dissuaded...if she knew that her fiancée would be fired."

To keep the provision from being abused, the court said that to file suit, a third party must fall within a "zone of interests" the law protects.

Because he was a North American Stainless employee Mr. Thompson qualified. Justice Scalia wrote, "and the purpose of Title VII is to protect employees from their employers' unlawful actions." The case is expected to go to trial unless settled.

Source:
Justices Extend Protection Over Workplace Retaliation,
The Wall Street Journal, January 25, 2011

Investigations of pay practices in the health care industry are ongoing across the nation. Many lawsuits have hit hospitals, nursing homes, and other health care providers concerning unlawful pay practices. Most of those lawsuits involve automatic payroll deductions for meal breaks, even though the breaks were often interrupted or not taken at all.

Two lawsuits have resulted in back pay for nurses and other patient-directed employees from health care providers who failed to pay them for interrupted and missed rest breaks. The Washington State Nurses Association (WSNA) has filed lawsuits against four hospitals for failing to provide nurses with adequate breaks. According to the WSNA, the two successful lawsuits demonstrate the legal principle that in order to be a bona fide unpaid break, "a nurse's rest break must be uninterrupted time away from work duties, not a series of small, intermittent breaks which consist of brief interruptions[.]"

Research has shown that many health care employers are not in compliance with federal wage-and-hour laws. Such investigations have included various health care facilities, including hospitals, nursing homes, assisted-living facilities, and group homes for the disabled. Recent federal investigations resulted in findings that many health care providers are not paying proper overtime to employees working more than 40 hours in a work week. Those findings have resulted in further investigations and lawsuits delving into pay practices throughout the health care industry, resulting in hospitals, nursing homes and other health care providers around the country paying millions of dollars to settle claims for back wages to employees. Typical violations of employees' rights include failure to pay hourly employees for work before or after scheduled shifts and failure to include interrupted and missed breaks as time worked.

Federal Labor Department regulations do not require pay for "bona fide" meal periods. Those regulations, however, state that an employee must be completely relieved from work during the meal period for it to be considered a "bond fide" unpaid break. Payroll systems utilized by many hospitals and other health care providers automatically deduct a 30 minute break from each employee's shift, regardless of whether the break was interrupted by job duties and was therefore not "bona fide" as defined by law.

Federal Labor Department regulations also provide that for purposes of overtime, employers generally must include time spent by hourly employees at meetings to discuss work-related issues in such employees' work time.

Sources:
Washington Hospitals Sued, Scrubs, Oct 22, 2010

Pay Practices in Health Care are Investigated, The New York Times, August 9, 2010

While you are driving over the next few days, take note of how many people are driving vans and small trucks as service vehicles for their employer. At times, one in every four or five vehicles you see will be a company-marked service vehicle. The drivers will have various occupations, including installation and service technician, construction trades worker, or delivery driver. Many of them, perhaps even most of them, will be in the process of being cheated out of part of another day's wages.

Often, such workers are paid on a piece-rate basis, without regard to hours worked, and without any premium rate for hours worked in excess of 40 in a week. If they are paid by the hour, often much of their drive time isn't counted as "hours worked."

As our economy shifted from manufacturing to the service sector during the 1980's and 1990's, more and more people were required to drive as part of their job. That shift in the economy moved more and more employees out of jobs with overtime rights and into jobs subject to the "Motor Carrier" exemption from overtime rights. (This was one factor contributing to the shrinking of the middle class.) Until 2005, virtually every driver for hire, even if driving was only an incidental part of his or her job, was subject to regulation by the Department of Transportation under the Motor Carrier Act. Federal overtime laws have always provided that drivers subject to the Motor Carrier Act are exempt from federal overtime rights.

Then, in 2005, Congress amended the Motor Carrier Act to exempt from the Department of Transportation's regulatory purview drivers of most vehicles weighing less than 10,000 pounds. By limiting the scope of DOT's regulatory authority, Congress also expanded overtime rights of employees whose jobs entail driving vehicles weighing less than 10,000 pounds. A typical full-size van or pick-up truck weighs less than 8,000 pounds. Thus, literally millions of workers gained federal overtime rights in 2005. Unfortunately, most of their employers continue their business practices based on the pre-2005 overtime laws. They violate their employees' rights with a "catch me if you can" attitude.

You probably know people who drive service vehicles as part of their job. Ask them if they get paid by the hour for all of their time, including drive time, with an overtime premium of 1.5 times their regular pay rate for hours in excess of 40 each week. They will probably think you are crazy for even asking because they have performed such work for years, working over 40 hours a week regularly without any premium pay. They will assume it's just "business as usual." But in this case, "business as usual" became unlawful in 2005, and the affected employees are entitled to substantial back pay.