Top Employment Law Myths Every Healthcare Practitioner Needs To Know Print
Written by Robin I. Frank   
Wednesday, 09 August 2017 17:06

Owning and operating a successful company in the healthcare arena requires compliance with a myriad of employment laws. Whether you are a medical practice, a research clinic or a health records coder, there are laws that govern your business – aside from HIPAA. Failing to comply with these laws can result in an expensive lesson. There are many employment law myths that business owners in the medical industry face in the context of overtime and minimum wage laws that can lead to serious consequences, but there are also steps that they can take to avoid those repercussions.

The federal overtime law applies to employers regardless of the number of employees. Moreover, employees cannot waive their right to overtime – period. In the unlikely event that a front desk person, for example, signs a contract agreeing that he or she will not be paid overtime, that person can still sue for the unpaid overtime. In fact, this is why employees sue employers for unpaid overtime or minimum wage violations more often than for any other reason.

Many business owners – in healthcare and in numerous industries – wrongly assume that if an employee works overtime without advance approval, in violation of a written policy, they do not have to pay for that overtime. This is not the case. If the company knows, or has reason to know, that the employee is working overtime, it is liable and must pay for that overtime. Disciplining the employee for violating the policy may be in order, but not paying is not an option. Healthcare providers and business owners operating smaller companies in the healthcare industry often do not maintain accurate time records. In the overtime context, it is the employer’s obligation to keep and maintain accurate time records. A work schedule does not constitute an accurate time record. If, for example, a nurse, who is not exempt from the overtime requirements, has an especially busy day, or the data entry person spent extra time on new data that required input, and there are no accurate time records, the law allows the employee to merely estimate the number of hours worked in the event of a lawsuit. This could be as simple as the employee stating that she worked an average of “X” number of hours per week. Moreover, if she recovers even one penny in unpaid overtime, the practice likely will be required to pay double that amount as a penalty. The overtime law also requires the employer to pay the employee’s reasonable attorney’s fees if the employee wins. If the employer wins, in most cases the costs cannot be recouped.

As stringent as HIPAA compliance is, that’s how unforgiving the federal overtime law is for employers. In fact, it is almost entirely skewed in favor of the employee. For example, even if a medical assistant or orderly is an illegal immigrant, and therefore has no right to work in this country, that person can still sue for unpaid overtime and the law requires the owner to pay him or her for that overtime. The medical practice may also be subject to penalties for hiring an illegal worker in the first place, and liable for unlawful retaliation if the owner reports this worker to the immigration authorities. Moreover, whether or not they are owners, individuals who have the authority to hire, fire, and set pay rates and/or work schedules can be held liable for unpaid overtime and minimum wages. Additionally, successor companies are often substituted in after the fact. So closing down the practice or bankrupting it is not an effective solution.

Another problem area is misclassifying employees as exempt from the overtime laws, an issue that is not uncommon among medical professionals. “Classifying” employees as exempt does not guarantee that the law will see them as such. Paying an employee a salary or giving him or her the title of manager does not mean the employee is not entitled to overtime. Paying a salary simply changes how to calculate the overtime rate. Likewise, only certain types of jobs are exempt from the overtime requirements. A nurse or physical therapy assistant must be paid a minimum salary in order to be exempt; however, being paid a salary alone does not make the nurse or therapist exempt from the overtime law. Exemptions focus on the employee’s actual day-to-day job duties and responsibilities, and not the job title. For example, licensed practical nurses and similar healthcare employees do not generally qualify as exempt, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations. Likewise, home health aides, companions, sitters, personal care attendants, and live-ins may or may not be exempt from the overtime and minimum wage requirements. Some are exempt from both, others are only exempt from the overtime requirements, and others are not exempt from either. It is a factually-intensive analysis performed on a case by case basis. In other words, it can be a costly mistake for providers or business owners to make this determination themselves.

The best thing professionals who own or manage a medical or healthcare company can do to protect themselves is to maintain accurate time and pay records and consult with an attorney who is experienced in labor and employment law.

About the author:
Robin I. Frank is a Partner with Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida.  She focuses on labor and employment law and has extensive experience both prosecuting and defending against nationwide “collective action” claims for unpaid overtime or minimum wages under the Fair Labor Standards Act. She may be reached at (561) 477-7800 or rfrank@sbwh.law.

Last Updated on Wednesday, 09 August 2017 17:21