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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17305
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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My wife works at a hospital that has been recently bought out

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My wife works at a hospital that has been recently bought out by a larger hospital, the new hospital requires that the surgical nurses take call from 5pm to 7am 15 days a month in addition to their regular 10 hour day shifts that they are assigned. Different from other hospitals they refuse to hire a call team so on the days she is on call it is more likely than not that they will call her in sometimes 3 times during the fourteen hour call time. They also require that they are back at the hospital within 30 minutes, even though we live almost an hour away and have small children. So because of this she has to stay with family and cannot drink alcohol or go anywhere that would put her outside that call time. On top of this they say they only have to pay her $2.00 an hour while on call and do not count these hours as "hours worked". Should I get an attorney or go through the Department of Labor to force the hospital to pay atleast minimum wage, and count these hours as "hours worked"?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.

Hello,

Thank you for the information and your question. Is your wife paid hourly for her regular hours she works? Does the hospital pay her more when she actually gets called in to work, versus the $2/hr for being on-call?

Customer: replied 1 year ago.
She is paid hourly, and they pay her four hours when she gets called in at her normal rate but it always takes at least four hours
Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for your reply. As you may or may not know, the issue of whether on-call time is considered compensable time as hours worked is a very fact specific issue and can only be decided by the DOL and the courts. This is, without a doubt, one of the most technical and confusing (for everyone) area of the law. There may be cases that seem very similar where the DOL may say one should have been compensated for their on-call time at minimum wage and where the other case they say no compensation is required at all. The DOL and the courts will look at geography, response time, call frequency, and any constraints placed on the employee's activities.

As an example of how even the courts don't always agree in this area where an employee required to remain sober, and arrive at the hospital within approximately 20 minutes after being called and received calls when on-call an average of 4 to 5 times per week, one appeals court ruled that their time was not compensable at all. On the other hand, another appeals circuit found that the same essential facts would make the time compensable.

My guess is that most definitely on days where your wife is called 3 times in an on-call period, the DOL and the courts would hold that she must be paid minimum wage for all of her hours on that shift. However, for the others, it is doubtful unless she is called in multiple times that they will find that time to be compensable at all.

As you mentioned, she has two options. One is to file a wage claim with the state for any days that she believes she should have received minimum wage for her on-call period. She might though consider first sitting down with a local employment law attorney who is intimately familiar with the FLSA to discuss this on-call time in detail, so that they can advise her on her best option.

If you would like to read some guidance, both by the DOL and firm who has done a pretty good job summarizing the issues, you can read that information at:
http://www.dol.gov/whd/regs/compliance/whdfs53.htm
http://www.barley.com/publications/article.cfm?article_ID=320

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17305
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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