Employees in California must be paid for ALL hours worked

Q:        I work as a nurse at a hospital that has a strict policy of no unapproved overtime. We don’t ask for approval since we risk being written up for “too much overtime.” We just clock out and go back to work to finish our charts. We are also not allowed to go on breaks unless we are relieved by another nurse. We are often forced to skip our breaks because we are understaffed and there is no reliever. We are not paid for breaks we missed even though hospital policy says we should be. Do we have remedies?  

A:        Yes. You should be paid for the extra hours you worked even if they are “off the clock.” If these extra hours go beyond 8 hours per day, then you are entitled to the overtime rate of 1½ times your regular rate. Those who work beyond 12 hours per day are entitled to twice their regular rate. Also, you should be paid an extra hour for any missed meal break, and another extra hour for any missed rest break.

(If you work in the health care industry, you are also likely working on alternative workweek schedules (AWS). If so, all work performed in any workday beyond the schedule established by the AWS agreement up to 12 hrs a day or beyond 40 hours per week shall be paid “time and a half.”  All work performed beyond 12 hours per day shall be paid “double time.” Also paid double time are hours worked beyond eight (8) hours on those days worked outside the regularly scheduled number of workdays established by the AWS agreement.)

The above scenario is not uncommon in the healthcare industry. Consider the following case reported in the news recently:

Robert Shaw worked as a travelling nurse for AMN Healthcare, which is a company that recruits and places nurses at healthcare facilities nationwide. One of its clients is Kaiser Foundation Hospitals in California. Shaw sued AMN and Kaiser in a class action on behalf of himself and other travelling nurses, claiming that they were not paid for all the time they worked before and after their scheduled shifts. These include time spent on patient hand-offs, charting, and other work-related activities.  The nurses also alleged that AMN and Kaiser failed to provide adequate meal and rest break periods that were truly off-duty.

Nurses were provided copies of policies instructing them that Kaiser has a “strict policy against overtime.” Handbook provisions expressly stated that overtime is not authorized. Other policies provided an approval process for overtime that was too burdensome because it required the preapproval and signatures of two different managers. Nurses testified that they were exhausted after a 12-hour shift and that it was often “impossible” to track down a manager or charge nurse to authorize overtime. So nurses end up doing off-the-clock unpaid work.

Kaiser required its own nurses as well as the traveling nurses to perform the same core duties with respect to patient care. However, Kaiser’s overtime policy for its own nurses permits them to work up to two hours of overtime each week without supervisor approval, while travel nurses must have pre-authorization for any overtime. This policy seems to have created a situation where traveling nurses are not paid overtime.

California law requires employers to compensate employees for all time they are “suffered or permitted to work, whether or not required to do so.” Management must make every effort to enforce a rule against uncompensated work, including taking reasonable steps to investigate suspected work that is done without compensation. Employers cannot sit back or simply stand by while employees do uncompensated work.

AMN and Kaiser denied that they violated any law. The court granted approval for the employees to proceed to trial as a class. Rather than continue with litigation, the employers agreed to pay the nurses $20 million. There are about 8,200 class members.

Given the rights accorded by law to employees, efforts should be made by them to keep records documenting their off the clock work to justify any claim for wages.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.]