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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I am a nurse at a vascular surgeons practice in Texas where

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I am a nurse at a vascular surgeons practice in Texas where procedures are performed. I am an hourly employee and am paid twice a month. The office is open Monday thru Friday. I fill out time sheets for every payperiod and on those time sheets the standard pay period hours are listed. The hours vary from 80 to 96 depending on how the weekends fall in the pay period. The practice says that overtime is any hours over the standard pay period hours listed. In other words, for a standard pay period of 88 hours, if I work 50 fours in one week and 40 hours in the next week, I can only claim 2 hours of overtime. Is this correct or should I be able to claim 10 hours of overtime?
Hello and thank you for entrusting me to assist you, I will do everything I can to answer your question.

Your employer's method of calculation is erroneous. The Fair Labor Standards Act is extremely clear that employees must be paid overtime for all hours in excess of 40 per week. The Department of Labor specifically clarifies this point in Fact Sheet #23, in which it states: "Averaging of hours over two or more weeks is not permitted."

An employee in your circumstance would be wise to demand overtime for the entire 10 hours worked in excess of 40, and for all hours worked in excess of 40 in any other week, regardless of how those hours average out over a two week period.

If your employer refuses to pay, an individual in your circumstance can file a wage claim with the Texas Workforce Commission here: Employers are legally prohibited from retaliating against employees for making a claim for unpaid overtime.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Customer: replied 4 years ago.

Since I work in the medical field, does the law still apply to me as I have been told that there are some professions such as police, fire and medical that this law does not apply?


Thank you for your reply. It is true that there is an exemption from overtime for certain types of nurses which can sometimes be invoked. It's called the "learned professional" exemption and applies to individuals working jobs that require advanced knowledge, defined as work which is "predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment."

Generally speaking, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption. However, licensed practical nurses and other similar health care employees typically do not qualify, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for such positions.

However, even if your position qualified as a "learned proffesional" position, your employer MUST pay you on a salary basis of no less than $455 per week in order to qualify for the exemption.

Since you indicate that your employer is paying you on an hourly basis, you would be entitled to overtime no matter what because salaried pay is one of the requirements for this exemption.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
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