Healthcare: Hourly-Paid Healthcare Professionals Entitled to Overtime Pay

06.01.11

The Fair Labor Standards Act ("FLSA") entitles employees to overtime pay for hours worked in excess of forty hours per workweek. The overtime pay must be at least one-and-one half times the "regular rate" of pay. Bona fide professionals, however, have no right to overtime pay.

Bona fide professionals are those who perform work requiring knowledge of an advanced type in a field of science or learning that is customarily acquired by specialized intellectual instruction, and who are also compensated at least $455 per week on a "salary or fee basis". If the employee is licensed to practice medicine, however, an exception applies: the employee may be considered a bona fide professional with no right to overtime pay even if she is paid by the hour and not paid a salary or fee. While medical doctors, podiatrists, dentists and optometrists are subject to the exception, the U.S. Department of Labor, which administers the FLSA, has determined that pharmacists, nurses, therapists, technologists, dieticians, social workers, psychologists, and "other professions which serve the medical profession" are not covered by the exception. Accordingly, the latter are entitled to overtime pay unless they are paid a salary or a fee.

So, where does a Physician's Assistant ("PA") or Nurse Practitioner fall in this scheme? In a recent case before a federal court in Pennsylvania, a PA who had always been paid by the hour claimed the right to overtime pay. At issue was whether the PA should be considered tantamount to a physician who would not be entitled to overtime pay, or to a professional "which serves the medical profession" who would be entitled to overtime pay if she were not paid a salary or fee. The employer argued that the PA qualified for the exemption because she was licensed to practice medicine under physician supervision. The court rejected the argument and held that PAs and Nurse Practitioners are "other professionals who service the medical profession" and held that they must be paid on a "salary of fee" basis in order to be exempt from overtime pay. Consequently, even though the PA had the training and did the work of a professional, she w as entitled to overtime pay because she had been paid by the hour.

If you employ PAs or Nurse Practitioners, take a look at your compensation structure to determine whether you are compensating them on a "salary or fee" basis. If you need help, call us.

The author, Rebecca M. Fowler, may be contacted at rfowler@dsda.com.

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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