Barkan Meizlish , May 18, 2015
Misclassification cases are commonly brought by employees in the healthcare industry. Although the Fair Labor Standards Act (FLSA) provides exemptions from overtime pay for certain employees, determining whether an employee is exempt from overtime pay is extremely fact-specific. One exemption that is often incorrectly applied to employees in the healthcare industry is the “learned professional” exemption. This exemption is met when (1) the employee earns a salary of at least $455 per week; (2) the employee has a primary duty of performing work that involves advanced knowledge (or predominantly intellectual work); (3) the advanced knowledge is in the field of science or learning; and (4) the advanced knowledge is customarily acquired by extended courses of specialized intellectual instruction.
Although certain job positions in this industry will typically fall under this exemption, the bottom line is that employers should not presume that a professional license will automatically qualify an employee as exempt. An employee’s education or training alone is not determinative—employers must consider the employee’s actual day-to-day job duties, rather than their job title. For example, registered nurses (RNs) will generally satisfy the “duties test” for the learned professional exemption. That is, if the RN is actually performing the typical duties of a nurse, which involve discretion and judgment. If, however, an employee is engaged in non-traditional nursing roles, the exemption may not apply. On the other hand, licensed practical nurses (LPNs) are generally not exempt. Because this position does not require a specialized advanced degree, these employees typically do not fall under the learned professional exemption, regardless of past training or experience.Source: Thomas N. Shorter & Tom O’Day, Proper Classification Under the Fair Labor Standards Act: Time To Prepare for More Wage & Hour Litigation In Health Care, THE NATIONAL LAW REVIEW, Oct. 30, 2014, http://www.natlawreview.com/article/proper-classification-under-fair-labor-standards-act-time-to-prepare-more-wage-hour-.
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