Question The following question about overtime in the clinical setting was posed by a Medscape reader: I work at a union hospital in Massachusetts. We have time clocks, and nurses clock in and out for duty and lunch. It is the practice of administration to change this time if it will result in overtime. Some nurse managers threaten disciplinary action if the nurses need to stay late, and "educate" them to clock out before finishing their work. These practices have been memorialized in email form from the chief executives. I have highlighted the state and federal laws to the chief nursing officer, to no avail—the practice still continues. Are these practices legal, and what recourse is available to the nurses? Response from Carolyn Buppert, MSN, JD Healthcare attorney Pay for Hours Worked The bottom line for nurses who are paid on an hourly basis is this: The employer must pay nurses for hours worked. A nurse must be paid, even if a supervisor: Tells the nurse to clock out; Forbids the nurse to work after clocking out; and Even after being told to clock out, the nurse continues to work. This is why some nurses are disciplined and even fired for working after clocking out. The choice, for an employer, is to pay for hours worked or to preclude the employee from working extra hours. It is legal (and necessary) for a supervisor to discipline an employee for continuing to work after clocking out. An employer may discipline an employee for poor time management, even though no human could possibly complete the work in the allotted time. How to Handle Unfinished Tasks This doesn't mean that a nurse should leave things hanging. A nurse who is paid hourly and who finds himself or herself nearing the end of shift and with 10 things still to do should do the following: 1. Make a list of things still to be done. 2. Go to the supervisor and state, "I cannot get this list of things done by the end of my shift. Do you want me to leave on time, or stay and finish?" The supervisor needs to make a decision: The nurse can stay, finish, and be paid for the extra time, or the nurse can clock out and leave. If the decision is "leave," then the nurse should say, "OK, but I must leave you with the responsibility for seeing that this work is completed." The nurse and supervisor can then negotiate about the work to be done after end of shift. That includes negotiation about documentation, if that is one of the tasks to be completed. 3. If this situation is recurrent, and the nurse's evaluations reflect an inability to complete work on time, the nurse needs to sit down with the supervisor and review the workload. Some nurses are faster workers than others; some nurses are more thorough than others; some workloads are unreasonable; and emergencies happen. If a nurse can find ways to be more efficient, implement a plan. If there are too many patients and too few nurses, then it is the supervisor's responsibility to solve the staffing problem. 4. If this situation cannot be improved, the nurse should consider leaving the facility or hospital and finding a position where expectations are reasonable or the pace is slower. It's not going to be good for a nurse's career to hang on at a hospital where there are unreasonable demands, and the threat of termination or bad reviews constantly hangs over one's head. Overtime vs Working 'Off the Clock' If a nurse has been working off the clock, without pay, there is a process for getting paid, even if an employer won't acknowledge that an employee is working overtime. The process, in brief is: Employee personally documents hours worked; Employee keeps pay stubs documenting hours paid; Employee files a wage and hour action with the appropriate governmental agency or hires an attorney to file a private lawsuit for back pay; and The agency or attorney investigates and takes it from there. In defending his or her actions, the employer is likely to argue that the employee was not authorized to work after shift end, and/or was told not to continue working. However, if the employer tells the employee not to continue working but does nothing to stop the employee from continuing, the employer owes the employee for those hours worked. For more information, see this fact sheet from the US Department of Labor, The Health Care Industry and Hours Worked. Hourly vs Salary I need to be clear that my comments are applicable only to hourly employees. In general, salaried employees don't clock in and out. They are paid a set yearly salary for performing their job and do not qualify for overtime pay. Employees who fit the definition of "professionals" may be salaried and are exempt from wage and hour laws. The US Department of Labor's definition of a "professional" is one who: Is compensated on a salary or fee basis at a rate not less than $455 per week; and Primarily performs work requiring advanced knowledge, defined as work that is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment. The advanced knowledge must be in a field of science or learning. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. The Department of Labor also has a fact sheet on Exemption for Professional Employees Under the Fair Labor Standards Act. Some states have their own rules on whether nurses are professionals. For example, in California, registered nurses are not professionals for the purposes of wage and hour law and therefore must be paid for overtime hours. However, nurse practitioners are professionals and can be salaried. One court case held that an employer who chose to pay nurse practitioners and physician assistants at an hourly rate must pay those employees at an overtime rate for hours worked in excess of 40 per week.[1] It is not possible to address every employment scenario here, so nurses with wage and hour questions should visit their state's labor department website and the US Department of Labor. If a question still is not answered, seek consultation from a local attorney who is either a nurse-attorney or specializes in employment law. Finally, no one in a facility's administration should be changing employee's time records. Changing a time record could be fraud, which is a crime. Source
