Can hospitals average two weeks together to avoid paying overtime?

[RNdynamic]

Brief backstory: I am a registered nurse. I graduated in 2011 and found my first job in a hospital that same year working on a floor. I worked 80 hours every 2 weeks, which consisted of six 12 hour shifts and one eight hour shift. The hospital had high turnover and was in an economically depressed area in upstate NY. I worked at that hospital for about seven months before moving on and moving to a different state.

Generally I worked my six twelve hour shifts in succession so that I could have a long stretch of days off. For example, I would work my six twelve hour shifts in a row then get like 8 days off. However, even though I would sometimes 60 to 72 hours in one week, I was never paid overtime. My coworkers explained that because the two weeks were averaged into a single pay period and that because I didn't go over 80 hours, I wouldn't receive overtime. I didn't know much about labor and how that all works so I just accepted that as true. Now its 2014 and when I tell people about how I was paid, they all tell me that what my employer was doing was illegal.

Is that true? How far back would I even be allowed to take action for this?

[NRSKarenRN, BSN, RN]

Labor law allows business to choose pay period of weekly, bi-weekly or monthly. Overtime is based on exempt (salary) or non-exempt(hourly) worker. If paid biweekly and non-exempt employee, then you would not accrue overtime.

Visit US Dept of Labor, Wage and Hour website for more info: http://www.dol.gov/whd/

Overtime Pay

Fact Sheet #31: Nursing Care Facilities Under the Fair Labor Standards Act

Overtime: Employers must also pay all non-exempt employees a rate of time-and-one-half the regular rate of pay for each hour of overtime worked. Nursing care facilities may pay employees overtime after 40 hours in a 7 day workweek or alternatively, use the "8 and 80" system. Under the "8 and 80" system, the nursing care facility may pay employees -- with whom they have a prior agreement -- overtime for any hours worked after more than 8 hours in a day and more than 80 hours in a 14-day period.

Fact Sheet #17N: Nurses and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)

Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.

Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.

[RNdynamic]

My current employer pays biweekly but we still accrue overtime if we work more than 40 hours in any given week. That website states that a workweek is 7 days, which seems to be irrespective of pay period.

"Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay."

"The Act applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted."

How does what I just copied from that website support your idea that I would not accrue overtime if paid biweekly?

[nynursey_]

That hospital sounds oddly familiar …

[loriangel14, RN]

Yes, the hours are calculated according to the pay period. Plus it was your choice to work those shifts all at once.

[xoemmylouox, ASN, RN]

I do believe this is legal. Otherwise everyone would work all these days in a row and make a killing in O/T.

[RNdynamic]

Yea, apparently it's due to that 8/80 rule. Organizations that employ nurses 24/7 such as nursing homes and hospitals are an exception to the ban on averaging two weeks to compute overtime, it seems. Ostensibly, this lets facilities exercise more flexibility with staffing. Of course, nursing is the one profession where we accept this sort of exploitation.

[RNdynamic]

It still appears that I should have received overtime however, because that rule states that even if you don't exceed 80 hours over two weeks, then you still have to be paid overtime for shifts exceeding 8 hours on any given day. And I worked mostly 12s. Can anyone else weigh in?

[generalRN2008]

It depends on what state you worked in and state labor law

[toomuchbaloney]

If you are working 12 hour shifts you are likely working a 12 and 80 work contract or agreement.

The employer is only obligated to pay OT if you work more than 12 hours/24 or more than 80 hours/pay period.

You agreed to this at some point.

[loriangel14, RN]

If you are the one arranging to work them all together then you can't turn around and demand overtime.

[BuckyBadgerRN, ASN, RN]

The hospital would never allow staff to schedule themselves like you did if they were going to be faced with paying out big overtime money each pay period like you feel you are owed.