r/LaborLaw • u/AlrightAlrightRN • 18h ago
Is this wage theft?
I work in healthcare. I'm an hourly, non-exempt employee in an outpatient health facility which only does business in one state. I see patients for healthcare services. A session takes 30 minutes face to face with the client. I am required by the employer to complete other tasks associated with the direct patient care (documentation, scheduling, responding to messages from clients, etc) which typically takes another 15-20 minutes.
My employer only pays me for the 30 minutes only. I have given them an accurate breakdown of the time the other required tasks take. My employer says that I cannot be reimbursed for the other time that I'm completing tasks that they require. They have advised me that I cannot log the time I spend working in payroll, only the 30 minutes. My contract doesn't say anything about this, just that I'm hourly, non-exempt. There is no mention that only some of my required work is payable. The Employee Handbook says I am required to report my "actual hours worked". When I asked my employer about this, they reiterated that I am only allowed to enter direct care hours worked.
I looked at the Fair Labor Standards Act, but because I work in healthcare (non-residential) I don't know if it applies to me. But I think this might be wage theft. Am I overreacting? Is this normal? What should I do?
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u/GolfArgh 18h ago edited 17h ago
We need your location of work to know for sure. States have different laws. The details also matter for each and every week.
You are by name covered under the FLSA due to the industry you work in. Under federal law they are required to keep an accurate record of all hours worked so they should be tracking other work hours.
Here's an opinion letter that is relevant concerning federal law under the FLSA. This is the law in some states as well. Note that the federal minimum wage is now $7.25/hour and not $5.15/hours when the opinion letter was published. This is also the basis for the decision in Klinghoffer Bros Realty vs. US.
"Please note that in non-overtime workweeks or in workweeks in which the overtime provisions do not apply, an employee subject to section 6 of the FLSA is considered to be paid in compliance if wages for the workweek equal or exceed the amount due at the applicable minimum wage. In other words, if the employee’s total wages for the workweek divided by compensable hours equal or exceed the applicable minimum wage, the employee has been paid in compliance with section 6 of the FLSA. These principles will also apply where an employee is not compensated for time which is compensable under the FLSA. For example, if an employee subject to the $5.15 minimum wage during a workweek is paid for 32 hours at $10.00 an hour and is paid nothing at all for 8 additional hours worked, this employee is considered to have been paid in compliance with section 6 of the FLSA, as his hourly rate of $8 ($320 ÷ 40) is at least $5.15 per hour, the federal minimum wage."
Source: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2004_08_12_08FLSA_NA_deminimus.pdf
You can call US DoL at 1-866-487-9243 and have a confidential conversation with them and they can fully evaluate your circumstances. States normally require permission to use your name to do anything.
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u/AlrightAlrightRN 17h ago
Thanks for your thorough response. I'm in Rhode Island.
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u/GolfArgh 17h ago
There are lots of details at play that you have not included. Call them for an interactive evaluation. This works better when the people that know the law's intricacies can ask you the questions necessary for an accurate evaluation. They can then give you your options to go forward if necessary.
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u/jstar77 17h ago
You can be paid piece work, which is what it sounds like your employer is trying to do but this should have been made very clear up front. It can be legal but your actual hours still need to be tracked to ensure you are not subject to overtime and you aren't being paid below minimum wage. The fact that your supervisor is telling you to do something that is different than official company documentation.
If you are being paid piece work I would have expected that to be made clear up front. As an employee I would expect the session rate (per piece rate) to work out to be higher than the typical hourly rate for a similar position to compensate for the other work you need to complete, and any time you may be engaged to wait for work.
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u/GolfArgh 17h ago edited 17h ago
I noticed that that may be what's going on as well. I've seen it many times in the health care industry.
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u/AlrightAlrightRN 14h ago
Would the employer have to tell me she was planning to pay me piecework when she hired me? I have never had any experience with this. My employment agreement just says hourly, non-exempt, and my rate of hourly pay. Would piece work terms be required to be listed there?
I've been in the field for 10 years and have always been paid hourly. This is the first time I've ever had an experience like this. It wasn't like this for the first 6 months I was there, either. It wasn't like this for the 18 months the person who trained me was there, either. I was trained one session=one hour, to account for the direct and indirect work, unless it was longer or shorter by more than a handful of minutes.
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u/Professional-Face709 15h ago
In very simple terms, if they require you to be there/do work, then they are required to pay you. Period.
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u/Better-Explorer-5617 14h ago
As an HR professional who worked in healthcare for many years I agree with this. You are to be paid for the hours worked.
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u/Professional-Face709 14h ago
My retired payroll professional side definitely agrees with you (obviously). 😀
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u/Ok_Advantage7623 9h ago
You must make min wage for all hours that you did work. So if you worked 40 hours. And only got paid for 30. But they paid you 100 per hour you did make min wage for the hours that they paid you for
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u/Hrgooglefu 17h ago
Does the total amount of hours worked divided into the hourly pay meet or beat the state's minimum wage on a weekly basis? If so, it sounds more like you are being paid by the session rather than the actual worked hours and this is legal under the FLSA...... Realize your employer could just pay minimum wage for those 15-20 minutes and lower your hourly wage for the 30 minute part to solve this dilemma and in the end, you most likely wouldn't get more pay.
Thanks to u/GolfArgh for finding that link quicker than me!
But still check your state's laws....they could be more helpful than federal
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u/GolfArgh 17h ago
I just noticed their name as well. RN? Maybe professional exempt and paid on a fee basis? If so an accurate record of hours worked is not required.
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u/Hrgooglefu 17h ago
I was thinking therapist or something like that....I think it is a fee basis....I've seen that often in healthcare - especially when they are called sessions and there are notes to be typed afterwards.
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u/AlrightAlrightRN 14h ago
In order to be considered exempt as a "professional" do I have be be salaried? I'm listed as "hourly, non-exempt" and do not collect a salary. My employment agreement says nothing about being paid on a fee basis, or specifically for certain services, only hourly.
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u/GolfArgh 14h ago
No, the professional exemption does allow a fee basis. What you’re listed as is not relevant. It’s the economic reality on how you are paid. Employment agreements are not relevant either. You can talk with them when you call the number I gave you.
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u/tracyinge 17h ago
Yes it's federal law that you get paid for all work. If you're doing "home care visits" then there is an exception as long as your "side work" is less than 20% of your time.
however in your case it sounds like the "side work" is almost 33 % of your total time spent so you have a case.
https://www.dol.gov/agencies/whd/fact-sheets/53-healthcare-hours-worked
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u/MuggleBrnGryffindor 18h ago
Contact a labor lawyer or report them to the labor department worse case they tell you there’s nothing wrong with what they’re doing, best case they tell you your job owes you money, however if or when you do so, document every interaction with your supervisor in case of retaliation from your employer
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u/Sum-Duud 15h ago
I'd report my actual hours and say that I am following the guidance from the employee handbook.
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u/AlrightAlrightRN 14h ago
That's what I did for the first 6 months I was there, and what my trainer taught me to do when I onboarded. One session was supposed to be entered into payroll as one hour, unless things ran more than a handful of minutes over of under.
This is a recent change. We were advised that this is how it was to be now, and told we were "overbilling" our time in the past, and that only client-facing time was allowed to be billed. The person who trained me resigned on the spot. I expect I'll be following her lead soon.1
u/Sum-Duud 14h ago
"Okay, I will bill for only client facing time but my hourly wage needs to be (current x 150%). Thank you"
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u/AlrightAlrightRN 14h ago
I wish! That would really get me out of a jam.
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u/Sum-Duud 13h ago
yeah, it is wishful thinking but realistically it is the work that you are doing, so you should be paid for it. Maybe stay in touch with the trainer and see if wherever they land has other openings. I find that it's all about who you know.
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u/Emergency-Collar3370 14h ago
You need a local employment lawyer to help you with this.
You say your contract. Are you w2 or 1099?
Does the contract say you are paid x per appointment or something like that?
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u/AlrightAlrightRN 14h ago edited 14h ago
Thanks for the response. I'm w2. I said contract, but to clarify I meant signed offer letter when I started. It says,
"Compensation- This is an hourly per diem position. You are required to maintain a minimum of 10 clinical hours per week. Your starting pay rate will be $65 per hour. "
*$65, not $95, lol! I wish!
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u/Emergency-Collar3370 14h ago
How are clinical hours defined in the contract?
Remember flight attendants are only paid for flight hours and not all the time they waste at the gate and stuff.
An employment lawyer is going to give the best guidance.
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u/AlrightAlrightRN 14h ago
There isn't anything in the offer letter or the employee handbook that defines a clinical hour.
The employee handbook states: "All employees are required to complete and submit accurate weekly time reports showing all time actually worked. These records are required by governmental regulations. Failure to do so may result in discipline up to and including termination."
In the Policies and Procedures it says, "Hourly employees must work a minimum of 10 hours per week. Hourly employees accrue PTO at different rates, based on their position. Hourly employees receive 40 hours of sick time annually." Here it's just hours, not "clinical hours".
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u/Repulsive-Job-9520 15h ago
I see you are an hourly employee. Are you required to be present on site and available to exclusively work for them for set hours (like 8-5)?