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?
Specializes in Critical Care, ED, Cath lab, CTPAC,Trauma.
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?
While states say that anything over 8/40 is OY there are exception under federal law that they follow as well. federal laws state...
The Eight and Eighty (8 and 80) Overtime System
Under section 7(j) of the FLSA, hospitals and residential care establishments may utilize a fixed work period of fourteen consecutive days in lieu of the 40 hour workweek for the purpose of computing overtime. To use this exception, an employer must have a prior agreement or understanding with affected employees before the work is performed. This eight and eighty (8 and 80) exception allows employers to pay time and one-half the regular rate for all hours worked over eight in any workday and eighty hours in the fourteen-day period. See Regulations 29 CFR 778.601.
An employer can use both the standard 40 hour overtime system and the 8 and 80 overtime system for different employees in the same workplace, but they cannot use both for a single individual employee.
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. If an employer changes the pay period permanently, it must calculate wages on both the old pay period and the new pay period and pay the amount that is more advantageous to each employee in the pay period when the change was made.
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.
IT is legal for you to not be paid OT if they are on a 8/80. Most states have their own labor laws but refer to the federal laws for hospitals and 12 hour shifts.
For example...Connecticut....
Sec. 31-76h. Hospital employees. No employer engaged in the operation of a hospital shall be deemed to have violated section 31-76c if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, a work period of fourteen consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of eight hours in any workday and in excess of eighty hours in such fourteen-day period, the employee receives compensation at a rate not less than one and one-half times the regular rate at which he is employed.
Some where along the line you agreed to it. Self schedule is an implied agreement and I am sure it is covered in your employee handbook the you agree to and I am cure signed that you read it in oreintation when you sign all other papers. If you are not sure write and ask the DOL in your state.
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.
I don't remember doing so or signing anything that said so. Also it looks like the NYS department of labor that contracts designed to avoid overtime payment are not lawful, but I could be mistaken.
May employees waive their right to receive overtime?
No. For example, an agreement between an employer and employee to count only 8 hours a day or
only 40 hours a week as working time will be considered an illegal attempt to waive the overtime
IT is legal for you to not be paid OT if they are on a 8/80. Most states have their own labor laws but refer to the federal laws for hospitals and 12 hour shifts.
If the facility was operating under the 8/80 system, then wouldn't I be owed overtime for all the shifts that exceeded 8 hours? Like the 12 hour shifts?
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.
That implies must be following labor laws and paying employees correctly. There are cases of this not being true all over the country.
"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?"
You are scheduled for 12 hour shifts and you feel you should be paid for anything over 8 hours?
If they are operating under the 8/80 system they can average two weeks together HOWEVER, they are obligated to pay overtime after 8 hours in a single day. So, you are correct. If they are using this to avoid paying overtime for hours over 40 in a single week, they would have been obligated to pay overtime for the last 4 hours of your 12 hour shifts.
Were you classified as "exempt" or "non-exempt" though? If they classify you as "exempt" and claim that they are paying you on a "salary basis" (because you got paid for 40 hrs/week regardless of if you worked 60 or 80), that's how they'd get around the overtime requirement. My old hospital did this. I could work 96 hours in a 2 week period, not a dime of overtime and only paid for 72 hrs. RNs were considered "salaried, exempt employees."
"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?"
You are scheduled for 12 hour shifts and you feel you should be paid for anything over 8 hours?
That's what the 8/80 rule is. The employer is allowed to use a 2 week period to calculate overtime but they MUST pay overtime for any hours over 8 in one day and over 80 in that 2 week period.
Under Section 7(j) of the FLSA, hospitals and residential care establishments may use a fixed work period of fourteen consecutive days, instead of the 40 hour workweek, for purposes of computing overtime. To use this exception, the employer must have a prior agreement or understanding with the affected employees before the work is performed. The “8 and 80” exception allows employers to pay one and one-half times the employee’s regular rate for all hours worked in excess of 8 in a workday and 80 in a fourteen-day period. An employer can use the standard system of overtime for hours over 40 in a workweek for some employees and the “8 and 80” exception for others at the same workplace, but cannot use both systems for a single individual employee.
It depends on what state you worked in and state labor law
The 8/80 system that the OP said her hospital was operating under is federal. So in any state of the country, hospitals utilizing this system MUST pay overtime after 8 hours in a workday.
"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?"
You are scheduled for 12 hour shifts and you feel you should be paid for anything over 8 hours?
You may want to review the posts by KelRN215... it may help you to understand. If an employer wants to schedule you for 12 hour shifts they don't have to pay overtime... unless they are using the 8/80 system, which it appears my employer did. In that case, they appear to be required, by law, to pay overtime on days that exceed 8 hours. Try looking at the links in the first couple posts if you didn't understand.
If they are operating under the 8/80 system they can average two weeks together HOWEVER, they are obligated to pay overtime after 8 hours in a single day. So, you are correct. If they are using this to avoid paying overtime for hours over 40 in a single week, they would have been obligated to pay overtime for the last 4 hours of your 12 hour shifts.
Were you classified as "exempt" or "non-exempt" though? If they classify you as "exempt" and claim that they are paying you on a "salary basis" (because you got paid for 40 hrs/week regardless of if you worked 60 or 80), that's how they'd get around the overtime requirement. My old hospital did this. I could work 96 hours in a 2 week period, not a dime of overtime and only paid for 72 hrs. RNs were considered "salaried, exempt employees."
I was non exempt. I was a floor nurse. I punched in at a time clock every day and I would even get reprimanded if I punched in early. All the floor nurses are non exempt. This was a new graduate nurse floor nurse position.
I was non exempt. I was a floor nurse. I punched in at a time clock every day and I would even get reprimanded if I punched in early. All the floor nurses are non exempt. This was a new graduate nurse floor nurse position.
Ok, so then yes, they were in violation of federal law. They probably (correctly) assumed that most people wouldn't realize it.
I was a new grad floor nurse too. And I was still considered "exempt". All staff nurses at this particular hospital were treated as "exempt" employees so the hospital didn't have to pay us any overtime. We were so far from exempt employees it was ridiculous.
So you scheduled yourself to work six 12's in a row so that you could have a week off every other week and now you want to go back and sue them for back pay???? WOW!!!!
Specializes in NICU, PICU, Transport, L&D, Hospice.
I don't remember doing so or signing anything that said so. Also it looks like the NYS department of labor that contracts designed to avoid overtime payment are not lawful, but I could be mistaken.
So they did not offer you a job that was 12 hour shifts?
You did not accept that job and agree to work 12 consecutive hours as part of your employment agreement?
Are you supposed to be working only 8 hour shifts and have only agreed to work the 12 hour schedule to "help them out" or as a temporary measure for some reason?
In a strict interpretation of the law they are not avoiding the payment of OT, they are simply avoiding paying OT for regularly scheduled and agreed upon hours.
Years ago I worked in a department as an 8hr/shift person. One of the ICUs badly needed an experienced RN for the summer months and I picked up that time as I had once worked in and even managed the department. Those shifts were 12 hour shifts. The nature of my employment agreement did not change and the hospital had to pay me OT each and every time I worked 12 rather than 8 hours. That hospital used 8/40, 8/80, and 12/80 agreements and scheduling.
I would encourage you to look at your job offer letter and agreement that you signed. Ask to see your HR documents related to employment status and payroll.
Esme12, ASN, BSN, RN
20,908 Posts
For example...Connecticut....
Some where along the line you agreed to it. Self schedule is an implied agreement and I am sure it is covered in your employee handbook the you agree to and I am cure signed that you read it in oreintation when you sign all other papers. If you are not sure write and ask the DOL in your state.