Most nurses in California are entitled to overtime pay. Certain types of advanced practice nurses are exempt as professional employees. These are certified midwives, certified nurse anesthetists, and certified nurse practitioners. If you are not one of these advanced types of nurses, there is a good chance you are entitled to overtime.
Given that almost all RNs are entitled to overtime, many issues come up involving what hours are subject to overtime and how much the nurse should be paid for overtime. The following are some common issues that come up in this field.
The general rule in California is that all employees are entitled to overtime for work past 8 hours in a day. However, in the health care field, many employers implement what is known as an "alternative work week." These work schedules allow employers to have the employees work more than 8 hours (usually 10 or 12 hours in a day) without paying overtime. These arrangement will be legal only if the employer complies with all the requirements for a valid alternative work week. It is not enough for an employer to simply state "we have 4/10." Since the employer did not comply with the law for alternative work week, the employer can still implement the 4/10 schedule, but they must pay overtime for all hours worked past 8 in a day. Thus, each week you would receive 32 hours straight time and 8 hours OT.
In order to have a valid alternative work week, the employer must (1) conduct an election by secret ballot in which employees are given the right to vote either for or against the proposed schedule, (2) provide a fixed regularly schedule alternative work week, (3) register the election with the Division of Labor Statistics and Research. There are many requirements that must be met for the election. However, if the employer did conduct an election, there is a good chance it was a valid election. The main issue in most cases is whether or not the employer registered the election. If they did not submit the result of the election to the DLSR, as required by law, then the election is not valid. Fortunately, the DLSR provides a website where you can look up to see if your company has a registered election. If your employer is not on this website, then they most likely do not have a valid alternative work week.
Even if your employer does have a valid alternative work week, you are still entitled to overtime pay. First, you are always entitled to overtime after 40 hours in a week -- regardless of whether you are on an alternative work week or not. Second, you are entitled to daily overtime for hours in excess of your alternative work week schedule. That is, if your schedule is for 4 / 10 hour days, then any work past 10 hours in a day is considered overtime. Any work past 12 hours is double time.
If you have a 3 / 12 -- where you work 3 days of 12 hour shifts, you are automatically entitled to double time for work past 12 hours in a day. It is illegal to have an alternative work week schedule for more than 12 hours a day -- thus anything past 12 is always double time.
The general rule is that any training that is required specifically for your employer and is particular to just that one employer will be treated as time worked and must be paid for. Any type of generally applicable education, such as your mandatory Continuing Educational Units or CPR certification does not need to be paid for by the employer because it is of a general nature -- that is, it is not specific to any single employer. However, if the training is not of a general type, but is required only for a specific employer, then that time will be considered work time. Initial orientation and learning a new computer system will all be considered work time and the employer must pay you for the time even if they call it "pre-hire training" or part of the "interview."
Nurses are entitled to meal and rest breaks, the same as all other employees in California. That is, you are entitled to a paid 10 minute rest break for every 4 hours or major fraction thereof that you work. In addition, you are entitled to a 30 minute unpaid meal break for every 5 hours that you work.
One exception for nurses is that if you work more than an 8 hour shift, you may waive your right to a second meal break if (1) a written agreement exists that provides that one of the meal breaks is waived and (2) the written agreement may be revoked by the employee with 1 days notice. This frequently comes up for nurses who work 12 hours shifts. If they have a written agreement, then they do not have to take their second meal break.
Any uniforms required by the employer must be paid for by the employer. However, clothing that is not distinctive to one employer, but can be used generally in the industry need not be paid for. Most "scrubs" are not distinctive to one employer and need not be paid for by the employer. However, if your employer requires you to purchase a specific uniform that is used only at their hospital or has a distinctive color or logo that would not be used at other employers, then the employer must pay for the cost of such clothing.
The general rule in California is that all expenses paid at the request of your employer must be reimbursed. Thus, if you travel for work, any meals, lodging, or incidental expenses must be reimbursed by the employer. This issue can become complicated for travel nurses. Some employers have pay plans where they pay the travel nurse a portion of their wages "tax free." While it may be legal to exclude the income from taxable wages, this does not mean that it is not wages subject to overtime. The IRS and the DOL (Department of Labor) use entirely different schemes to determine what is and is not a "wage." As such, employers may mistakenly feel that just because they pay the wage as a "tax free" wage, it is not subject to overtime premiums.
Many staffing companies have penalty clauses in their contracts in which the employee will have to reimburse the employer if the contract is terminated early. Many of these provisions are illegal, but each one needs to be examined individually. For instance, any contract that requires a nurse to pay for expenses that are incurred for the benefit of the employer is illegal. Thus, if your assignment is terminated early and you must pay the employer back for "training" or other business expenses, this is illegal. However, if your contract has a penalty clause if you terminate early, the employer may be entitled to this money.
In general, the employer is not allowed to recover non-wage money from an employee out of their final pay check. That is, if the contract states "You will pay Staffing Company $1000 if you terminate this contract in less than 12 week," this portion of the contract may be legal. However, if they try to take it out of your final pay check, then that taking would likely be illegal. If they withhold it, you would likely be entited to "waiting time penalties" for the employer's failure to pay all your proper wages upon termination. The would still be entitled to recover their $1,000, but by then they would likely owe you much more than that..
Employers are allowed to correct wage mistakes on your pay check. That is, if the company accidentally over paid you wages, they can recover this money from your paycheck. The reasoning is that these were never "wages" as they were never earned. However, once the wage is earned, the employer can not automatically deduct non-wage debts out of your final pay check without a garnishment order from a court.
If your employer offers you a retention bonus such as "after the first 1 month of work, you will receive a $1,000 bonus," then this money must be included in your regular rate of pay for computing overtime. If you worked any overtime in that inital month, then you are likely entitled to additional overtime pay as part of the bonus.
Nurses can be subject to a variety of labor law violations. Unfortunately, few pursue a claim because they feel that it will reflect poorly upon them. As such, many employers and staffing agencies continue to make extreme profits by committing labor law violations. If you would like to put a stop to this at your place of work so that you and your co-workers no longer need to tolerate these violations, please contact me.
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