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Generally after a regulation is issued it will take effect 60 days after. The administration has allowed for a delay so that families that use attendants, as well as state Medicaid programs have time to prepare. However, they can choose the 8/80 policy, standard overtime policy, or even both. Hospitals are allowed to use both policies depending on what works best for them.
There are different rules for employees who live in the household where the services are provided. See the questions and answers regarding rules that apply to live-in domestic service employees. This includes any home health aides, personal care aids and certified nursing assistants.
Example: Retention Bonus
Nonexempt employees must be paid at least time-and-one-half their “regular rate” of pay for all hours worked over 40 in a workweek. The “regular rate” includes an employee’s hourly rate plus the value of some other types of compensation such as bonuses and shift differentials. A common error in calculating overtime pay by health care employers involve the failure to include bonuses, shift differentials and other types of compensation in the regular rate of pay. Errors are also common in the health care industry in calculating the regular rate when an employee works two or more different jobs in a single workweek. Direct care workers are workers who provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions.
At our law firm, we fight for the wage-and-hour rights of employees in Maryland, Virginia, Washington, D.C., and California. Those rights are based on federal and state laws and include being paid minimum wage and proper overtime, being paid on time, being paid for all time actually on duty, being classified properly as an employee and not facing retaliation when they assert these rights. Effective January 1, 2015, agencies and other third party employers may no longer claim the overtime pay exemption for live-in domestic service workers.
Changes to the FLSA and Overtime Rules for Healthcare Workers
As home care agencies began to provide these services, the definition of home care services needed to change as technically this was now an employed workforce vs. a directly contracted domestic worker. Under the FLSA, the additional half-time compensation must be paid on the regular rate which is defined as the total remuneration divided by the total hours worked. Overtime compensation must be calculated on the regular rate, which will exceed the hourly rate when shift differentials are paid.
Stephan Zouras, LLP has recently secured several multi-million dollar settlements on behalf of classes of Clinicians who worked for some of the largest health care systems in the United States. Licensed Practical Nurses and Licensed Vocational Nurses are generally nonexempt and do not qualify for professional exemption. Protection involves assistance in the home and accompanying the person outside the home, to provide safety support. This includes help getting in and out of a vehicle, monitoring the assisted person out in public, and calling for help if the person falls or has a medical emergency. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Overtime Pay Home Care Aides
For example, the employer kept separate payroll records for overtime hours from which it paid out regular straight-time pay mislabeled as reimbursements. Instead, the law required that the employer should have paid one-and-one-half times the regular rate of pay for earned overtime. If you are employed only by the person you assist, or that person's family or household, you may or may not be entitled to minimum wage and overtime pay, depending on your duties. Many hospitals, medical institutions and home health agencies pay clinicians on a “per visit” basis for patient visits and an “hourly” basis for other work.
"Companionship services" doesn't include performance of medical tasks which typically require training and are performed by medical personnel such as registered nurses, licensed practical nurses, or certified nursing assistants. Whether a task is medically related is based on whether the services typically require and are performed by trained personnel. What keeps employees who work over 8 hours per day and more than 80 hours in two weeks from double-dipping? When overtime payments are due for over 8 hours and over 80 hours, the over 8 hours are credited towards the over 80 hours for overtime. An employer’s work period under the 8 and 80 overtime system must be a fixed and regularly recurring 14-day period. It may be changed if the change is designated to be permanent and not to evade the overtime requirements.
Example: Supplementary Shift Bonus
Those in health care say it would provide protection for an already stretched workforce. This review is long overdue but my sentiments are still as overwhelmingly positive and strong for the firm-especially Ryan, Haley and Emily many months later. From day one Ryan made me feel like my case was his most important case, that I was not who was wrong, and that more than anything they were on my side. Their firm and the way they listen and make you feel is why I imagine one would go into practicing law.
Kristen Petranek wonders if people who favor abortion restrictions understand the real impact they can have on people facing situations like hers. She explains that she was raised an evangelical Christian – she now goes to a Presbyterian church every Sunday. She says she thinks about it every day – the loss of the pregnancy this spring, and the loss of the chance to add to her family in the future.
Many companies now face the prospect of paying overtime to newly nonexempt employees who may be paid below the new threshold. To avoid falling short of FLSA compliance and incurring fines, it’s worth revising the status of each employee. This also benefits the employer by allowing them to only pay one overtime calculation. This is a total of 36 hours, but they would be eligible for 2 hours of overtime because of the 10-hour shift on Wednesday. Premium pay for daily overtime under the 8 and 80 system may be credited towards the overtime compensation due for hours worked in excess of 80 for that period.
The FLSA currently has a companionship exemption that prevents Home Health Care Workers from receiving overtime pay. The proposed rule would limit the companionship exemption only to households or families that are directly paying the Home Health Care Worker’s services. Therefore, staffing agencies that provide the home health care services would be prevented from claiming the exemption and would be required to pay time and a half for any hours worked over 40 hours per week. When 2015 rolls around, home healthcare workers should ensure that they will in fact receive overtime pay from their employer.
The prudent thing to do is work with an HR specialist to audit current employee classifications and overtime accounting practices. For some healthcare providers, new FLSA updates may mean a major shakeup to their current workforce structure. For others, it may be an opportunity to take a closer look at current wages and reporting practices. Department of Labor has updated the Fair Labor Standards Act in the form of revised overtime provisions. These updated provisions have widespread ramifications for all industries—including healthcare.
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