Common Wage & Hour Issues
Article submitted by Mr. Richard Castleton who is currently practicing law with Burke Costanza & Carberry LLP. His practice focuses on wage and hour compliance and defense, EEOC compliance and defense, and other similar areas of practice. He is licensed in the states of Colorado and Indiana. Visit the firm website for more information - www.bcclegal.com
When someone says wage and hour law, they are generally referring to laws that govern minimum wage, overtime, family and medical leave, and other similar issues. Each industry tends to develop its own common patterns and practices in this area of law which likely results from owners and managers sharing best practices and ideas about how to improve. However, some common industry practices are not always correct and may give rise to back wage liability or other issues. Unfortunately, this is the case in the senior living industry. While we cannot address all of the common issues in the industry, this article will address several of those issues along with some action items for employers.
Post- & Pre-Shift Work Time:
One of the most common issues in industries that involve nurses, certified nursing assistants, and caregivers is off-the-clock, or pre- and post-shift, work time. Pre- or post-shift work usually occurs because employees are required to pass along information to the next incoming staff member to ensure the highest level of care to the resident or patient. At times, employees will clock in after receiving this information at the start of the shift, or clock out before giving this information at the end of the shift. However, this exchange is considered “hours worked” under the law and must be compensated.
Meal Breaks:
Meal breaks are customarily thirty (30) minutes or longer of unpaid time provided the meal breaks are completely “duty-free.” If the employee performs any work during the meal break, the employee must be compensated for that time. By way of example, an employee who eats lunch with residents of an assisted living facility who happens to help a resident eat his or her food must be compensated for that meal break as it is not completely “duty-free.”
Shift Pay:
It is also common in certain facilities for employers to compensate employees on a flat-fee basis per shift. This is not illegal, but it may at times create problems for employers. For example, consider an employee who works a twenty-four (24) hour shift (with an eight (8) hour sleep credit) for compensation of $150 per shift. If the employee works any additional hours during the eight (8) hour sleep credit, the employee must be compensated for that work. Furthermore, failure to adequately inform the employee that the flat-fee shift rate takes into consideration overtime compensation for a certain number of hours, the employer may be required to pay additional overtime back wages.
Risk & Liability:
While the issues listed above may not appear to result in significant back wage liability for isolated violations, it is important to remember that violations usually occur more regularly than the employer may realize. For example, if an employer hires a full-time, non-exempt employee to work forty (40) hours per week, a ten (10) minute pre-shift work violation every day for two years may not only result in a straight-time violation, but may also result in a violation of the overtime provisions of the law as well. Couple this with an occasional meal break and incorrect calculation of overtime pay as a result of paying the employee on a flat-fee basis, and the back wage liability begins to increase more quickly.
Employers should review their policies and investigate what is actually happening in their companies. If these issues are found, employers may make small modifications to works schedules to reduce pre- and post-shift work time; require employees to go off site or out of the building to ensure that meal breaks are completely duty-free; and review handbook policies and or employment contracts to ensure that the policies and contracts contain adequate and clear language that informs employees that flat-fee shift rate includes a certain number of hours of overtime.
About the Author and Burke Costanza & Carberry LLP
Mr. Richard Castleton is a former investigator with the U.S. Department of Labor Wage & Hour Division who is currently practicing law with Burke Costanza & Carberry LLP. His practice focuses on wage and hour compliance and defense, EEOC compliance and defense, and other similar areas of practice. He is licensed in the states of Colorado and Indiana. This article is for information purposes only and is not legal advice. Readers should contact a licensed, qualified attorney to discuss the matters addressed in this article. If you would like to contact Mr. Castleton, please contact him at (219) 769-1313 or castleton@bcclegal.com.
Website: www.bcclegal.com
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