April 1, 2008

The Fair Labor Standards Act requires that most employees in the United States be paid overtime pay at a rate of one and one half times their regular rate of pay for all hours worked over forty (40) in a work week. Many jobs have a pay system which makes it easy to calculate whether a person is entitled to overtime pay. For instance, when a person is paid by the hour, and works more than forty (40) hours per work week, overtime pay can be calculated by simply taking the hourly rate times 1.5, which will equal the overtime rate of pay.


However, the Fair Labor Standards Act contains many exemptions and exclusions which make it difficult for employers and employees to know whether a person is entitled to overtime pay. One such exemption is the exemption for executives, administrative employees, professional employees and outside sales employees contained in Section 13(a)(1) of the Fair Labor Standards Act. This provision has been the subject of many law suits filed recently on behalf of employees who were told by their employers that they were not entitled to overtime pay.


Nurses are one example of an employee that has traditionally been thought of as not being entitled to overtime pay. However, this traditional way of thinking is now getting some employers in hot water for violations of the Fair Labor Standards Act. One large hospital in Dallas, Texas, Parkland Health and Hospital System, was recently sued by a former nurse employee, who alleges that Parkland Health and Hospital System failed to pay her for her overtime work that she performed during a three (3) year period while she worked for the hospital system.


The case will most likely turn on whether the Plaintiff in the Parkland Hospital suit can be qualified as a “learned professional” which would fall under Section 13(a)(1) of the Fair Labor Standards Act. In order for an employer to not be required to pay its nurses overtime pay, an employer must be able to show:


1. That the employee was compensated on a salary or fee basis at a rate not less than $455.00 per week;


2. The nurses primary duty must be the performance of work requiring advance knowledge, predominately intellectual in character which requires the consistent exercise of discretion and judgment;


3. The advance knowledge must be in a field of Science or learning; and


4. The advance knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.


It is a very fine line at to whether certain nurses qualify to be paid overtime under this exemption. Registered Nurses who are paid on an hourly basis should most likely receive overtime pay. However, Registered Nurses who are registered by the appropriate State Examining Board generally fall under the Learned Professional Exemption as long as they are being paid on a salary basis of at least $455.00 per week.


On the other hand, licensed practical nurses and other similar employees of hospitals are genuinely required to be paid overtime pay for any hours over forty (40) hours per work week regardless of their work experience and training, because possession of a specialized advance academic degree is not a prerequisite for entry into such a position. As such, licensed practical nurses and similar health care employees would be entitled to overtime pay.


Information on overtime wage claims is easily obtainable through the Department of Labor’s website at www.dol.gov. Any employee that is not being paid one and one half times their regular rate of pay for their overtime hours should try to obtain as much information on overtime wage claims as possible. That employee may just find out that they have not been paid the full amount of their wages over the last several years. The Fair Labor Standards Act also allows for an employee to recover not just their overdue wages, but also an equal amount of their overdue wages known as liquidated damages. The Fair Labor Standards Act also allows a party that prevails in an overtime wage law suit to have their attorney paid by the employer. This means that an employee can recover the amount of their overdue wages, without having a portion of it go to pay their attorney.


If you have a question or need information on overtime wage claims, please log on to www.JMMLawyers.com for additional information. The Law Office of Joseph M. Maus and Associates is an “AV” rated Florida law firm licensed to practice before the United States Supreme Court and Federal Court for the Southern and Middle Districts of Florida. Please call our offices for a free consultation or to obtain more information on overtime wage claims.



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