There has been a surge of nursing lawsuits in recent years, with nurses arguing they have been denied overtime pay, meal breaks, and fair wages as guaranteed to them by the Fair Labor Standards Act (“FLSA”). The FLSA makes a distinction between exempt and non-exempt employees, with the latter receiving overtime and wage protection.

Unless exempt from the FLSA, employees must be paid a certain minimum wage for all hours worked and are entitled to receive overtime pay $1.50 rate per hour worked in excess of a 40-hours in a work week. Thus, full time employees must be paid for any work that is performed before or after scheduled work periods, during scheduled meal breaks, and meetings.

On the other hand, exempt employees are not entitled to overtime or minimum wage protection. Section 13(a)(1) of the FLSA exempts certain categories of employees from FSLA protection. These exempt employees include bona fide executive, administrative, professional, learned professionals, or outside sales employees. Certain computer employees are also exempt employees. Determinations as to those who fall into these categories must be based on actual job duties or tasks, not titles. Exempt employees generally have managerial responsibilities, specialized or technical knowledge, personal discretion and independent judgment.

As the health care industry continues to boom and the need and demand for nurses increases, it is important for both facility employers and nurses to understand what is an exempt employee under the FLSA. Nurses present overtime and wage issues for healthcare facilities, because nurses do not generally work the traditional work day or week. The following factors are considered in determining if a nurse is an exempt employee and not protected by the FLSA:

• The employee is compensated on a salary or fee basis at a rate not less than $455 per week;

• The employee’s primary duty is the performance of work requiring advanced knowledge, such as work that is predominantly intellectual in character and requires the consistent exercise of discretion and judgment;

• The advanced knowledge must be in a field of science or learning; and

• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Licensed practical nurses (LPN)

Regardless of work experience or training, LPN’s generally do not qualify as exempt, because a specialized advanced academic degree is not a prerequisite.

Registered nurses (RN)

RNs normally meet the duties requirements for the learned professional exemption, as long as they are registered by the appropriate State examining board. If a RN is paid an hourly basis, then the learned professional exemption is not applicable.

Nurse practitioners (NP)

NP’s, who have standardized licensing requirements and perform direct patient care and may provide a higher level of “professional” healthcare services than other nurses are considered exempt, as long as they meet the salary requirement.

Nursing supervisors

Nurses that supervise other nurses may be considered to have managerial duties and as such be an exempt employee.

Healthcare employers should review their process for classifying nurses to ensure that a thorough evaluation has been done to determine whether the nurse is entitled to overtime and minimum wages as a nonexempt employee. Misclassification can be a costly mistake.