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New overtime regs: Do you know who's exempt?

Nurse Leader Weekly, November 5, 2004

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Double-checking that your employees are properly classified and compensated is particularly important now that the revised Fair Labor Standards Act (FLSA)-also
known as the FairPay Overtime Initiative-has been in effect since August.

Here's what you need to know about paying your nursing staff:

Registered nurses (RNs). The status of RNs has not changed with the new rules. Since 1971, RNs have qualified for the learned professional exemption, and employers are not required to pay them overtime if they meet the salary requirements, according to the Department of Labor. RNs who are paid on an hourly basis are entitled to overtime pay, the rule states. Industry trends dictate that many RNs are paid hourly and therefore still earn overtime pay for working more than 40 hours per week.

Licensed practical nurses (LPN). The FairPay Overtime Initiative clearly states that LPNs-and other similar healthcare professionals including licensed vocational nurses-generally do not qualify for the learned professional exemption. According to the notice published in the April 23 Federal Register, LPNs "could not be classified as learned professionals because, unlike RNs, the possession of a specialized advanced academic
degree is not a standard prerequisite for entry into that occupation."

However, employers should note that they may still qualify for the executive or administrative exemptions, says Eve I. Klein, Esq., partner at Duane Morris, LLP, in New York City. "If you have an LPN who's running a group and effectively responsible for hiring and firing, that would be a circumstance where an LPN would likely fall under the
executive exemption, not under the professional exemption," she explains.

Collective bargaining agreements. The new rules do not change how your facility pays staff who participate in a union, says Klein. Section 541.4 of the regulations states that "while collective bargaining agreements cannot waive or reduce the Act's [overtime] protections, [the revised FLSA] does not relieve employers from their contractual
obligations under collective bargaining agreements." Therefore, employers who agree in
a collective bargaining agreement to exceed the FLSA's requirements are required to honor their commitments, Klein notes.

Source: What You Need to Know about the FairPay Overtime Initiative, a special report published by HCPro, Inc. 

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