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Nurse Believes She Qualifies for California Overtime

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Palmdale, CASusan, a registered nurse (RN), works about 60 hours per week and wants to know if she is entitled to California overtime. "When I was hired the manager said the job would require occasional overtime, but I was salaried and exempt," she says. "It was okay now and again, but not anymore. Because RNs are exempt, we have been taken advantage of."

A number of wage and hour experts believe that nurses can be subject to a variety of labor law violations. With few exceptions, to be exempt you must perform exempt job duties.

"My manager sent an email to everyone because people are complaining about the workload. 'You are lucky to have jobs,' he said."
According to her job duties, Susan (not her real name) has been misclassified and is therefore entitled to overtime compensation.

The FLSA classifies as exempt the job duties of the traditional "learned professions," including registered nurses (but not LPNs). It also says that job duties are exempt executive job duties if the employee:
  • regularly supervises two or more other employees, and also
  • has management as the primary duty of the position, and also
  • has some genuine input in the job status of other employees (such as hiring, firing, promotions, or assignments).
  • Exempt status is determined by an employee's actual work activities. It does require, however, that employers pay non-exempt employees overtime pay.
Susan was hired 18 months ago by one of the biggest health insurance companies in America. She doesn't want to disclose the name for fear of retaliation, which is another violation of the California labor code. "I started out working about three days per week overtime, about 10 to 12 hours a day," Susan explains, "but for the past eight months, every day is overtime—and there are hundreds of us working 60-hour weeks. Everyone is in the same boat.

"I'm not sure why I am exempt; it is just the way I was hired. According to some online sites, RNs should not be exempt. We don't make decisions and we don't supervise anyone. We work in a call center in an educational capacity for our members." Susan's job is to contact policy holders who have recently been in hospital or received a new diagnosis and follow up with their medications and treatment.

"They want us to contact more members, and the requirements for documentation don't allow us enough time to do both," says Susan." We can't do all the paperwork and call these people in an eight-hour day. Initially my manager was compassionate and attempted to decrease the workload, but upper management made more work for us.

"They are making it worse for themselves and us—and their members. Even working 60 hours per week I can't get the work done. I can input data fast, so I know other RNs are worse off than me. Some people work weekends as well, trying to get caught up. As well, they audit our work; we get a bonus every year for performance that is based on the work we do. I think they want us to fail so they don't have to pay bonuses.

"My manager sent an email to everyone because people are complaining about the workload. 'You are lucky to have jobs,' he said. I saved the email.

"A few years ago nurses filed a class action overtime suit, which is still pending. I was newly hired and didn't get involved, but now I wish I had."

Susan is referring to Ruggles v. WellPoint, Inc. The plaintiffs, who work in WellPoint's call centers around the country, claim that WellPoint's practice of paying its call center nurses a salary and not overtime pay is a violation of the FLSA. Many employers believe the "learned professional" exemption to the FLSA overtime and minimum requirements automatically applies, and that they won't have to pay overtime. The case against WellPoint challenges that assumption. Unlike the conventional RNs, the nurses that work in WellPoint's call centers allegedly perform various non-medical or "nontraditional" duties, which involve very little decision-making.

Like Susan and her co-workers, the three named plaintiffs in the WellPoint case worked as a case management nurse, a utilization review nurse, and a medical management nurse. The primary duties of each plaintiff allegedly involved working in a call center environment and spending the majority of the day on the telephone with providers, hospitals or members, collecting and inputting data into a computer, following predetermined review guidelines for medical procedures, and coordinating with providers. The plaintiffs in WellPoint claim they do not exercise sufficient discretion and judgment to be properly classified as exempt employees.

Susan and hundreds of other employees will be carefully watching the outcome of this lawsuit. It is likely that the court will have to reexamine what it takes to be an RN working in managed care and whether RNs assigned to nontraditional medical services are misclassified. If so, Susan is owed a lot of overtime.

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