Staying late, not getting paid.

Editorial Team / Admin · May 2, 2015

Does it happen? Yes. Is it legal? Most likely not. Check with the Labor Board in your area re: working off the clock. It may only take an official notice to make the practice stop. If you are working (legitimately, not just milking the clock like some of the people I work with), then you deserve to be paid.

toomuchbaloney · May 2, 2015

I am a new grad and I just started my very first job at a skilled nursing facility. The place is nice and my co-wokrers are wonderful. But, I am greatly concerned. Management is on a mission to have zero overtime and is constantly on nurses to clock out on time. But these nurses don't have enough time during the 8 hour shift to do their med pass, chart and fill out all the paperwork from the day. So they end up clocking out when their shift is over with and staying unpaid to finish all of their tasks for 2-3 hours. I am not comfortable doing that. Am I being naive here? Is this the norm?

You and your nursing co-workers need to have a meeting about this.

As a group you should discuss what sort of stuff must be left undone in order to comply with the facility orders. This is the professional way to accommodate an across the board mandate for professional behavior. A mandate was delivered, now the professionals respond with a plan to meet the mandate.

I am very serious about this.

You all should begin making a list of the TASKS that have been delegated to your which do not require a nursing license to complete. ANYTHING and EVERYTHING should be included.

As a group decide what you will recommend be set aside in order that every nurse is DONE with his/her work after 8 hours, not simply working unpaid to complete.

Good luck

LoveMyBugs, BSN, CNA, RN · May 2, 2015

Never work off the clock!

How do you expect change to happen if you let them do this?

Most SNFs and LTC managements do this. Getting on the staff about clocking out on time, notice they never say make sure your work is done. But clock out on time.

If you are not getting paid do not work. It is not your fault nor the other nurses that they do not have enough staff to get the work done in 8 or 12 hours.

I have worked for a couple places that were like that. They told us if we stayed clocked in over our shift we had to fill out a time correction form and after 3 we would be written up.

All of the nursing staff would end up staying over 1hr-3hrs past shift depending on the hall they worked.

We stopped filling out the form and stayed clocked in. We would get monthly reminders to fill the form out.

Chronic understaffing, if management didn't see how much their staff is staying over to finish the work then they can't see they need to hire more staff.

Please think about yourself and look out for yourself.

What would happen if somehow you got injured off the clock? Would workmans comp cover you?

Bet your company would fight it, because you were not "working" at the time you were off the clock

TheCommuter, BSN, RN · May 2, 2015

Some employers are taking advantage of the overly saturated nursing job market by making demands of their nurses that cannot be fulfilled in an 8 or 12-hour shift.

The unspoken practice of clocking out to complete unfinished work is one of these demands. I am glad I work at a place that does not encourage this practice.

And yes, it is downright illegal. Your state's labor board would have a field day if someone anonymously complained about your employer.

scottaprn · May 2, 2015

TheCommuter is dead on. It is illegal. It is even illegal for you to volunteer to stay late off the clock.

NicuGal, MSN, RN · May 2, 2015

Never work off the clock! Once you click out the hospital will not cover you for anything that happens during that time. Say you are finishing a meds pass and you give the wrong med and something happens to the patient, the facility can turn around and say you did this off the clock and you have assume all liability, better hope your malpractice covers you since we aren't.

allnurses Guide · May 2, 2015

I frequently have to stay over in order to finish daily Medicare paperwork that I just can't always get to during the regular course of my shift. But I refuse to clock out if I am still working for two main reasons. 1. You need to be paid for the work you do; Two If you get hurt on the job and you are not clocked in your work can claim you were not in the facilty and use the time clock records to prove it. I usually have no problem getting stuff done when census and acuity are low - but there are days even with low census where the shift hits the fan like last night. Fortunately the noc nurse is a good team player and she picked up right where I left off without complaint so I did my two medicare charting and was able to leave by 12:30 am.

That being said - I feel the LTC environment is very intimidating for the new grad. It's not to say you can't do it because you can but you have to get real good at time management. Are you using a computerized MAR? The one we use allows you to prioritise your medpass so when I come in I can prioritise by blocks of time (1500to 1700) (1700-1900) Etc..... By doing this I don't get late on essential things like blood sugars or cardiac and other critical medications and still get small blocks of time to sit down and chart during my shift. You also need to be good to your CNA's as they are you eyes and ears and often know redsident's and what's outside there norm better than you do. They can't do your job for you but they can make it easier or harder if you don't treat them with respect.

When it comes to people coming in late or loitering before their shift. I don't put up with it. Stand up when they come in and say "Oh great you're here, let's count, I have to pick my kids up or some such thing. If management says your having two much overtime tell them why. They can help you learn better time management which really only comes with time and experience. If the overtime is due to your relief showing up late tell management that "my relief showed uo 45 minutes late and I couldn't just abandon my charges."

Unless you are a sallaried employee they can't make you stay over off the clock - But they can write you up for exessive overtime if it becomes a pattern. Also don't get in the habit of not taking a lunch break - you'll burn out faster than a Roman candle.

Hppy

Here.I.Stand, BSN, RN · May 2, 2015

You are not being naive--you are right to not be comfortable with this.

Here's something you can show to your manager and the facility's legal dept--

Link to the full page: Fact Sheet - Wage and Hour Division (WHD) - U.S. Department of Labor

From our friendly, FEDERAL Dept. of Labor:

A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients' charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.

Your choices are: do only what you can in 8.00 hours and clock out on time, or stay late and get paid for it. DO NOT work for free.

caliotter3 · May 2, 2015

It is very common for unpaid overtime to be expected or even requested in the LTC environment. I was told during the hiring spiel one time that I would be expected to clock out and finish on my own time. You can bet I didn't challenge the DON when she told me that. Employers take advantage of the employees who need work in an impossible job market and who are too afraid to make complaints to the authorities for fear of putting their name out there in the rarified world of nursing employment.

scottaprn · May 3, 2015

The FLSA defines the term "employ" to include the words "suffer or permit to work". Suffer or permit to work means that if an employer requires or allows employees to work they are employed and the time spent is probably hours worked. Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as "working off the clock".
For example: An employee may voluntarily continue to work at the end of the working hours. He or she may need to finish an assigned task, prepare reports, finish waiting on a customer or take care of a patient in an emergency. An employee may take work home to complete in the evening or on weekends to meet a deadline. All such activity is hours worked.
When an employee must correct mistakes in his or her work, the time must be treated as hours worked. The correction of errors, or "rework", is hours worked, even when the employee voluntarily does the rework.
All time is hours worked which an employee is required to be at work or allowed to work for his or her employer. An employer may hire a person to do nothing or to do nothing but wait for something to do or something to happen.
Time which an employee is required to be at work or allowed to work for his or her employer is hours worked. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working. The Supreme Court has stated that employees subject to the FLSA must be paid for all the time spent in "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business."
Hours worked include all time during which an employee is required or allowed to perform any work for an employer, regardless of where the work is done, whether on the employer's premises, at a designated work place, at home or at some other location.
It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee's work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time hours worked.

Fair Labor Standards Act (FLSA) - Hours Worked Advisor

It is illegal to work without being paid. As the above department of labor opinion states you can't even volunteer to work for free.

Q: I don't think I'm being paid right. Can I file a complaint with the WHD? A: Yes. While there are many employees that may be exempt from some provisions of the law, an employee covered by the FLSAwho provides information that demonstrates the probability that they have not been paid the required federal minimum wage of $7.25 per hour effective July 24, 2009, or overtime (1Â½ times the regular rate of pay for hours worked in excess of 40 in a work week) may file a complaint with the Wage and Hour Division (WHD) of the U.S. Department of Labor.
Q: What If I'm not sure I want to file a complaint? Can I find out what my rights are?
A: Absolutely! You can call or visit any Wage and Hour Office to ask about the laws or file a complaint. You can also call WHD's toll-free help line:
1-866-4USWAGE (1-866-487-9243)
TTY: 1-877-889-5627
Monday-Friday 8 a.m. to 8 p.m. Eastern Time
You may also call or visit the local office near you or send us an e-mail.
Q: If I talk to someone at Wage and Hour, will it be confidential? I don't want to lose my job.
A: All discussions with WHD are confidential. All complaints are confidential; the name of the complainant and the nature of the complaint are not disclosed. The only exceptions are: when it is necessary to reveal a complainant's identity, with his or her permission, to pursue an allegation; and when the WHD is ordered to reveal information by a court. You can find additional information about the investigative process at Fact Sheet 44

There are huge whistleblower protections for filling complaints even if the company finds out it is you. Another alternative is to have someone file a third party complaint

http://www.dol.gov/wecanhelp/3rdparty.htm

And finally were you cheated out of overtime by practices like this in the past 3 years? If so stand up for your profession and for those that may still be working there. You can still file a complaint and put an end to the practice

Q: I haven't worked for this employer for a while. How long do I have to file a complaint?
A: The FLSA contains a two-year statute of limitations (three-years for willful violations). This means that any part of a back wage claim which was earned more than two years before a federal court lawsuit is filed may not be collectible. To ensure we can complete our investigation before the statute of limitation expires, employees should file complaints with WHD as soon as possible.

You can only be taken advantage of as far as you allow. If the culture of your workplace is to devalue you as a professional you have lots of recourse.

blondy2061h, MSN, RN · May 3, 2015

Everything everyone has told you about the illegality of this practice, the common expectation that you'll work for free, the lack of catalyst for change if administration is getting free labor, and the liability of not being covered by worker's comp or malpractice if something were to happen are all excellent points.

But there's something else I want to bring up that's usually left not mentioned in these threads and the legal department at my factory has informed nursing off. Charting off the clock is a HIPAA violation. HIPAA allows for healthcare workers to have access to protected health information at the level required to provide care to the patient. Once you have clocked out and reported off to another nurse, you're not longer providing care to that patient and accessing that chart is no different legally than a visitor grabbing a chart and flipping through. Obviously, practically, it is much different. But it's another thing to consider when protecting yourself.