An investigation by the U.S. Department of Labor’s Wage and Hour Division has determined that a West Virginia nursing facility failed to pay the proper overtime premium to employees working 12 hour shifts. The investigation recovered $270,984 in back wages and liquidated damages for 166 workers.
The nursing home’s failure to pay the proper overtime violated the Fair Labor Standards Act (FLSA). The investigation determined that the employer failed to pay the required overtime when employees worked in excess of 8 hours in any workday and in excess of 80 hours in an established 14 day period, which is a practice that is permitted for hospitals and resident care facilities under certain conditions. Additionally, the nursing home failed to include on-call pay and other bonuses in the calculation of overtime pay. The employer did pay bonuses for longevity, recruitment, vacation deferral, and hero pay related to the pandemic.
Affected workers included registered nurses, licensed practical nurses, certified nursing assistants, dietary staff, maintenance workers, and housekeeping staff. The affected employees received their back wages from the recovered $270,984.
Under the FLSA, hospitals and residential care establishments may use a fixed work period of 14 consecutive days in lieu of the 40-hour workweek for the purpose of computing overtime. To use this exception, an employer must have a prior agreement or understanding with affected employees before the work is performed.
The Wage and Hour Division’s Health Care Industry and Calculating Overtime Pay factsheet can be accessed at U (dol.gov)
Issue:
The Fair Labor Standards Act must be adhered to at all times within your facility. It is imperative that all employees who are responsible for determining rates of pay, deciding overtime pay eligibility, and performing recordkeeping of wages are well trained in the Fair Labor Standards Act. When overtime is required within your facility, ensure that all federal laws are adhered to for the employee working the overtime. Violations of the FLSA can result in fines and other penalties.
Discussion Points:
- Review your policies and procedures on fair wages, overtime pay eligibility, and recordkeeping. Update your policies as needed.
- Train all staff who have responsibility for ensuring fair wages, overtime pay eligibility, and recordkeeping about your policy and procedures, and ensure they demonstrate competence with the requirements. Document that these trainings occurred, and file each signed document in the employee’s education file.
- Periodically audit to ensure that fair wages, overtime pay eligibility, and the recordkeeping of hours worked are accurate and being reported correctly.
