Nurse Practitioners Misclassified as Independent Contractors

Nurse Practitioners misclassified as independent contractors instead of employees are owed overtime. In a recent settlement, two health care facilities with common ownership also owe overtime to shared employees when the owner failed to add up the total hours worked by each shared employee at both facilities in the same week. Finally, this employer automatically deducted meal breaks from time worked, even when employees worked through meal breaks.

Maxem Health Urgent Care will pay $147,622 in wages to 16 employees denied overtime pay for these violations at two facilities in Mississippi.

I.  NURSE PRACTITIONERS MISCLASSIFIED.

The employer – which operates Picayune Urgent Care Clinic LLC in Picayune, and Petal Urgent Care LLC in Petal, Mississippi – incorrectly classified nurse practitioners as independent contractors instead of employees. The employer then paid them at straight-time rates for all hours worked; including when they worked more than 40 hours per week and were legally due overtime.

The FLSA rules on who is an independent contractor and who is an employee for overtime purposes consider a number of factors. However, just because the employer calls a worker an independent contractor, doesn’t mean the worker is not an employee. Just because the worker is issued a 1099 instead of a W-2 at the end of the year, doesn’t decide the issue.

The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Court has held that it is the total activity or situation which controls. Among the factors which the Court has considered significant are:

    • The extent to which the services rendered are an integral part of the principal’s business.
    • The permanency of the relationship.
    • The amount of the alleged contractor’s investment in facilities and equipment.
    • The nature and degree of control by the principal.
    • The alleged contractor’s opportunities for profit and loss.
    • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
    • The degree of independent business organization and operation.

In many hospital, clinic, and care facilities; the “independent contractor” works side by side with other “employee” nurses, doctors, technicians, etc. They perform the same duties as these “employees”, using the same equipment, and are subject to the same amount of supervision or control by the employer. There are almost no facts which would make them independent contractors rather than employees for overtime purposes.

II.  COMBINING HOURS FROM TWO FACILITIES.

The Mississippi employer also failed to combine the hours individual employees worked at both locations during the same workweek when determining when overtime was due.

An employer who shares employees between two locations must total the hours at both locations to see if more than 40 hours in a week were worked and whether each employee is entitled to overtime pay.

For example, the owner of five hotels in St. Petersburg, Florida, recently paid $23,368 in back wages and liquidated damages to 30 employees. The employees did not work more than 40 hours in a week at any one hotel; so the employer paid straight time for all hours worked at each hotel. This violated the FLSA.  Even if the employee is given a separate check by each hotel; this scheme cheats the employee out of overtime. See our recent KSN Overtime Blog: “Add Hours From Two Jobs Together For Overtime.”

III.  AUTOMATIC DEDUCTIONS FOR MEAL BREAKS.

Maxem Health Urgent Care also deducted time from employees’ time cards for meal breaks even when they worked through their breaks. These timekeeping practices led to overtime violations when the employees worked more than 40 hours in a workweek but the employer fails to pay overtime.

In many hospital, clinic and care facilities; the staff often does not clock in or out for meal breaks. Patient care takes precedence and staff is often delayed in taking those breaks. A record system can automatically deduct for those meal breaks from time worked records, but it needs to be accurate.

Smart employers have a system where employees are asked to review and correct those automatic deductions before they end up on paychecks. There needs to be an extra layer of employee review and a mechanism for employees to report errors to assure that the automatic deductions are accurate and capture all of the time actually worked.

IV.  CONSULT AN ATTORNEY.

You may be cheated out of overtime if you are misclassified as an independent contractor rather than an employee. This is a growing problem in health care facilities.

You may be cheated out of overtime if you work at two facilities for the same owner. Your total hours should be combined from both facilities to determine if you worked more than 40 hours in a single work week.

You may be cheated out of overtime if you work through meal breaks but an automatic deduction for that break is made by a time keeping system.

Employees who are owed overtime can collect (1) back wages for all “Hours Worked” and any unpaid overtime, plus (2) liquidated damages in an additional amount of the same back wages and overtime, and (3) attorney’s fees and costs.

The Ken S. Nugent, P.C. Overtime and Unpaid Wages team of attorneys can help you determine whether you are entitled to overtime pay.  Our team covers the entire state of Georgia. We have eight Georgia offices ready to protect workers in not only large cities but also small towns and rural areas who are being cheated on their earned overtime.  We have an office with overtime attorneys near you: Albany, Atlanta, Augusta, Columbus, Duluth, Macon, Savannah, and Valdosta.  To reach one of our overtime team of attorneys, please contact us at 1-888-579-1790 or leave us your information and questions at our Overtime and Lost Wages website practice page.

 

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