2011 News

Are you owed overtime pay?

07.14.2011

From the Massachusetts Nurse Newsletter
June/July 2011 Edition

Julie PinkhamExecutive Director's Column
By Julie Pinkham

Recently you may have received a letter from the law firm of Thomas & Solomon LLP soliciting you to join a lawsuit against your employer for unpaid wages, especially those for missed meal periods.

As a member of an MNA bargaining unit, your contract provides you with the right to be paid for overtime work and work beyond your daily, regularly scheduled hours. As an hourly, non-exempt paid professional, we urge you to use the grievance and arbitration process to assert your claim for overtime pay because, if the MNA prevails on your claim, you will receive the full pay due to you. However, if you join the lawsuit any settlement will deduct attorney fees, be limited to those in the class eligible for the settlement, and you will likely receive only a portion of the wages due to you, not the full amount for non-paid wages.

We urge you to use the grievance and arbitration process to asser your claim for overtime pay because, if the MNA prevails on your claim, you will receive the full pay due to you

Hourly, non-exempt wages require, in part, that during each shift in which you are scheduled to work more than six hours, you have the right to an uninterrupted 30-minute meal break. This means that you are free to leave the unit, do not have to carry a pager, or be available for work or work-related questions. If you are required to stay on the unit or have to answer questions about your work during this period, then it is not a valid meal break and you are entitled to be paid for that missed meal period. You should consult your contract and local committee about the specifics of your contract because provisions vary. For example, some RNs receive a paid meal period so the above statements may not apply. Contract language covering hourly wages may improve the payment, but it cannot lessen the payment allowed under the law.

If there are several instances of RNs not being provided uninterrupted meal periods or not being paid for missed meal periods, then the bargaining unit should consider filing a class action grievance for missed meal breaks. This gives the MNA the right to obtain payroll information to prove the contract violation and get the RNs the pay they deserve. It is therefore important that you contact your local MNA committee if you believe you are not receiving proper overtime pay or your breaks as required by law and your contract.

It is also extremely important that you perform your work while on duty. You may feel direct or indirect pressure from the employer to not work beyond your scheduled shifts if it will result in overtime, yet you may need more time to complete patient care or documentation surrounding the care of your patient(s). It is not appropriate to sign off and then continue to perform work. Doing so may not only violate wage and hour laws, it potentially violates HIPAA (Health Insurance Portability and Accountability Act), as well as puts your nursing license at risk. Your malpractice insurance will not cover incidents that arise if you have signed out from your shift and then continued to perform work.

Hospitals facing these lawsuits are responding in a number of ways. Some, wishing to avoid litigation, are aiming to implement computerized time systems. As part of this effort, hospitals may propose to utilize a rarely used “in between” category of moving nurses to exempt status, but with the right to still receive overtime. This can be done for professionals who work greater than 20 hours and make more than a certain weekly amount. Currently, there are no MNA facilities using this system and as a result, it is unchartered territory in terms of its implications to bargaining unit members. Moreover, at least half of MNA hospitals currently have computerized time systems, many of which include benefit/accrual payroll systems. These issues can be highly involved, and the MNA has countless resources for helping members navigate these waters. We encourage you to call your labor representative at any point with questions and related concerns.

At the end of the day, you need to be paid for your professional work—and your payment must be consistent with your contract and consistent with the law. In addition, while pay is your due compensation for professional work performed, it also denotes value to your role … and if you do not value your work, management never will.

FPO