Rehabilitation and Nursing Care workers were owed overtime in a recent settlement: (1) when not fully paid for off the clock work, (2) when overtime was denied because work hours were not totaled from two facilities with a common owner, (3) due to the owner’s failure to include shift differential pay in the Regular Rate when calculating overtime pay, and (4) due to clock rounding errors which regularly shorted employees.
Three Rhode Island rehabilitation and nursing care facilities have paid $192,622 in back wages and liquidated damages to 89 employees to resolve violations of the overtime and minimum wage provisions of the Fair Labor Standards Act (FLSA). Centers for Care LLC – doing business as Centers Health Care, headquartered in the Bronx, New York – is the parent company for all three Rhode Island facilities.
I. WORKING OFF THE CLOCK.
All three facilities failed to pay workers for all time worked. Significant amounts of unpaid time arose from pre- and post-shift activities. This can commonly arise in care facilities when the needs for patient care extend after a shift or workers begin helping before clocking in before the formal shift schedule. An employer simply needs to pay its worker’s fairly for all actual time worked, even if the employee is working before or after their normal shift. An employer who relies on paying only for scheduled hours can violate the FLSA by not paying for all time actually worked.
The most common violation in the nursing care industry is the failure of employers to pay for all the hours worked. This uncompensated time most frequently occurs when employers fail to pay for work performed:
- Before and after a worker’s scheduled shift;
- During an employee’s scheduled meal period; and
- While employees are attending staff meetings and compensable training sessions.
For a More Detailed Discussion see: DOL Fact Sheet #31: Nursing Care Facilities Under the Fair Labor Standards Act.
II. WORKING AT TWO FACILITIES WITH COMMON OWNERSHIP.
The Rhode Island employers also failed to add the total weekly hours for employees who worked at both the Park View and Bannister Health and Rehabilitation centers during the same workweeks. This practice resulted in overtime violations when an employee’s total hours at both facilities exceeded 40, but the employers failed to pay overtime. Instead paying for hours worked at each location separately, at straight time rates; this cheated the employees out of overtime pay.
It violates the FLSA for an owner to share employees at two or more facilities but only count hours for each single facility in determining when overtime is due.
III. SHIFT DIFFERENTIALS AND THE OVERTIME RATE.
Additional violations resulted when the employers failed to include shift differentials in employees’ regular rates of pay when computing overtime. This resulted in paynig overtime hours at rates lower than those required by law.
Overtime pay is 1 ½ times the employee’s “Regular Rate.” In many situations, the “Regular Rate” is simply the hourly pay rate. If the employee makes $10.00 per hour, then the overtime rate is $15.00 per hour [1 ½ times $10.00 = $15.00].
However, suppose the employee also earns a shift differential for working weekends or the night shift. This extra pay needs to be added into the Regular Rate to make the overtime rate bigger. For example, the employee is paid $10.00 per hour plus a $2.00 per hour shift differential for the night shift. The employee’s Regular Rate is $10.00 per hour plus this extra $2.00 per hour. The overtime rate is $18.00 per overtime hour [ 1 ½ times $12.00 = $18.00].
By failing to include the $2.00 shift differential into the Regular Rate, the employer would be paying only $15.00 per hour of overtime instead of the legally required $18.00 per overtime hour.
It is common in nursing and rehabilitation centers which provide 24 hour care to provide shift differential pay in addition to hourly pay. This helps recruit and retain valuable employees. However, the shift differential pay needs to be added to the Regular Rate when calculating the correct amount of overtime pay. Failure to incorporate the shift differential cheats the employee out of the full overtime rate required by the FLSA.
Example: Supplementary Shift Bonus
At some residential care facilities, if employees fill in for another employee who calls in sick; they are paid a supplementary shift bonus of $75. This bonus must also be included in the regular rate for overtime purposes.
For a More Detailed Discussion see DOL Fact Sheet #54 – The Health Care Industry and Calculating Overtime Pay.
IV. TIME ROUNDING PRACTICES MUST BE FAIR.
The employers also failed to record and pay employees for all the hours that they worked due to erroneous time rounding practices.
Some employers track employee hours worked in 15 minute increments, and the FLSA allows an employer to round employee time to the nearest quarter hour. However, an employer will violate the FLSA minimum wage and overtime pay requirements if the employer always rounds down. Employee time from 1 to 7 minutes may be rounded down, and thus not counted as hours worked; but employee time from 8 to 14 minutes must be rounded up and counted as a quarter hour of work time.
An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than seven minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before their shift or if the employee works from 8 to 14 minutes beyond the scheduled end of their shift.
An employee’s schedule is 7 a.m. to 3:30 p.m. with a thirty minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40.
An employer only records and pays for time if employees work in full 15 minute increments. An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No, the employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for one hour of overtime each week.
A more detailed discussion of rounding errors commonly found in the healthcare industry, can be found at: DOL Fact Sheet #53 – The Health Care Industry and Hours Worked.
V. CONSULT AN ATTORNEY.
You may be cheated out of overtime if you are a rehabilitation or nursing care worker: (1) when not fully paid for off the clock work, (2) when overtime is denied because work hours were not totaled from two facilities with a common owner, (3) when the owner fails to include shift differential pay in the Regular Rate when calculating overtime pay, or (4) when clock rounding errors regularly short employee pay.
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.