On August 26, the US Department of Labor announced that it caused a home health agency in Buffalo, MN to pay $150,043 in back overtime pay to 144 workers. The Department of Labor states that the Fair Labor Standards Act requires employees be paid time and a half for work over 40 hours per week. However, most home health agencies are under the impression that home health workers are exempt from overtime pay requirements. This recent event stirs many questions:
• Are home health agencies confusing marketing reps with home health care workers in terms of overtime exemptions?
• Are office workers exempt? If they are RNs? If they are LPNs/LVNs?
• Are companions and non-certified home care aides exempt?
You can find the Department of Labor press release here:
August 26, 2010 letter: http://www.dol.gov/_sec/newsletter/2010/20100826.htm
The correct answers may be less than straightforward, as this one Minnesota home health agency recently learned. Some answers are available on the Overtime Lawyer Blog of attorneys Buckley & Klein. If looking for more information on the subject, you may want to begin your research with these articles from Buckley & Klein.
Classifying Home Health Care Workers:
http://www.overtimelawyerblog.com/2009/04/classifying_home_health_care_w_1.html
Nurse Exemptions & Regulations:
http://www.overtimelawyerblog.com/2009/03/overtime_for_nurses_1.html
We contacted Prairie River Home Care, and CEO Judy Figge, RN, graciously provided us with additional information in the hopes that it would be of use to other home health agencies. In a March 3, 2009 internal memo on this same subject, Nurse Figge stated, “Out of an abundance of caution, and in an effort to avoid an expensive and distracting legal battle with the Department [of Labor], we expect we will accept the auditor’s findings and will probably not contest the exemption issue under federal law.” The memo, which was to agency employees, went on to list several informative fact sheets referenced by the Department of Labor in their recommendations to the home health agency. These are listed below. Prairie River Home Care has earned the number one ranking Medicare patient census in McLeod and Olmsted counties and ranks as a leading home health agency in several other counties in central and southern Minnesota. Figge estimated that 90% of the employees covered by this DOL recommendation were RNs and LPNs directly taking care of long-term, 6+ hours per day, complex patients (people on ventilators and children). They had formerly been scheduled for 4 x 12-hour shifts per week totaling 48 hours per week. Figge shares that the nurses, patients, and families all preferred the 48 hour scheduling.
Fact Sheet #25: The Home Health Care Industry Under the Fair Labor Standards Act (FLSA)
http://www.dol.gov/whd/regs/compliance/whdfs25.pdf
Fact Sheet #17N: Nurses and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)
http://www.dol.gov/whd/regs/compliance/fairpay/fs17n_nurses.pdf
Fact Sheet #17G: Salary Basis Requirement and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)
http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.pdf
Fact Sheet #17D: Exemption for Professional Employees Under the Fair Labor
http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.pdf
Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA): http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf
Fact Sheet #17B: Exemption for Executive Employees Under the Fair Labor Standards Act (FLSA)
http://www.dol.gov/whd/regs/compliance/fairpay/fs17b_executive.pdf
