Q. My colleagues and I are medical professionals in a hospital, delivering care to patients. I am paid hourly, and my schedule is adjusted almost daily. I am supposed to work 40 hours per week, and management makes sure that happens, but I don’t think the way they do that is fair. My standard schedule is 8 to 5, with patients to see throughout the day. Physicians add new patients to our schedules at the end of the day and we may end up staying until 8pm or later. By Friday, if I worked the full day I was scheduled for, I’d be eligible for overtime, so they send me home early, so they don’t have to pay it. Should they be able to change my schedule like that? Should I be eligible for overtime?
A. An unpredictable work schedule is certainly difficult for employees to manage. The lack of consistency makes it challenging for employees to plan. The more management can communicate about the need for flexibility and their plan to maintain a planned budget the greater the chances the employees will understand what is expected of them and the financial realities of healthcare.
I consulted Attorney Toby Crawford, an associate at Hirsch Roberts Weinstein LLP, a Boston based law firm who notes “Absent an agreement between you and your employer, your employer may adjust your schedule however it sees fit. An employer is not legally obligated to provide you with consistent work. And an employer is not obligated to permit you to work through an entire, scheduled shift.”
The federal Fair Labor Standards Act (“FLSA”) says employers must generally pay “exempt” employees a full week’s pay, regardless of how many hours the employee actually worked. An exempt employee must be paid on a fixed salary basis, and includes executives, professionals, and administrators, as well as more narrow categories of employees, such as outside sales representatives.
The FLSA requires employers to pay “non-exempt” employees for all hours worked. By paying you on an hourly basis, your employer treats you as non-exempt. The hospital is only obligated to pay you for hours worked. If you were an exempt employee, your employer could violate the FLSA if it attempted to reduce your weekly earnings by sending you home.
Attorney Crawford explains “Your employer is acting lawfully in sending you home to avoid paying you overtime. The FLSA requires employers to pay overtime to non-exempt employees who work over forty hours in a workweek. At a minimum, overtime pay must equal time and one-half an employee’s regular rate of pay. For example, a non-exempt employee whose regular rate of pay is $10.00 per hour must receive at least $15.00 per hour in overtime.”
Under the FLSA, a non-exempt employee’s eligibility for overtime is based on hours worked in a given workweek. A workweek may span whatever seven consecutive days an employer chooses. There is no requirement that it mirror a traditional, Sunday through Saturday week. If an employee works more than eight hours in a day, but less than forty that workweek, the employee is not eligible for overtime. As a consequence, to avoid paying overtime, your employer may send you home early on Fridays.
The state overtime laws in Massachusetts generally mirror the FLSA, with eligibility determined on a weekly basis. A few states provide for overtime on a daily basis. In California, employers begin paying time and one-half to employees who work more than eight hours in a day and double pay for all hours worked in excess of twelve.
By Elaine Varelas, Managing Partner, Keystone Partners.