Changes to Overtime Regulations Won't Affect Nurses

by Barbara Gill MacArthur, RN, MN, FAAN
Vice President of Nursing
Florida Hospital Association

Although there seems to be a popular belief and dire predictions about the Department of Labor's proposed revisions to the Fair Labor Standard Act (FLSA)--warning that millions of nurses will lose overtime pay as a result--government officials say that the revisions do not affect RNs, LPNs, or certified nursing assistants. In fact, federal law has always exempted RNs qualified for overtime pay. Tammy McCutchen, administrator of the Department of Labor's Wage and Hour Division, stated in an interview with the Nursing Executive Watch (7/16/03) that for RNs, overtime is determined by employment agreements and market forces rather than federal regulations.

Under current FLSA policy, employees are exempt from overtime pay and have been since 1949, if they earn at least $155 per week or $8,060 annually and meet the requirements of a "professional," "learned," or "executive" employee. RNs are exempt under the current rules because they are considered learned professionals, meaning that their occupation requires an academic degree beyond high school. Since LPNs and CNAs do not have what the Department of Labor considers an advanced degree, they have always, and will continue to, qualify for overtime, according to Ms. McCutchen. Further safeguarding RNs' overtime is their salary scale is portrayed in terms of an hourly amount. Under federal law, anyone paid hourly is eligible for overtime. Although hospitals could make RNs salaried employees under current law--because of their status as learned professionals—and theoretically use that as a reason to stop paying them overtime, institutions have traditionally paid RNs by the hour. The proposed revisions raise the threshold to become eligible for exemption to a minimum salary of $22,100 per year and more specifically define the executive, administrative, and professional employee designations. In addition, an employee who has acquired expertise in an occupation by means other than traditional education may also be considered a learned professional.

Because RNs will continue to be classified as professionals, the revisions should have no legal impact on their receipt of overtime pay. And, the revision stating that an employee could be classified as a learned professional through experience applies only to occupations to which the majority of employees have advanced degrees. For example, two engineers working on the same job, one with a college degree and one without a college degree but with significant engineering experience, would both be considered learned professionals because the second engineer's experience had provided the knowledge necessary to work in a field dominated by employees who have advanced degrees. Since the LPN and CNA fields do not require advanced degrees, no amount of experience would cause a designation shift to professional, meaning the revisions do not threaten overtime pay for those positions.

Regardless of the proposed revisions' lack of impact on nurses' overtime status, some nursing groups have expressed concern that hospitals will use the changes as an opportunity to discontinue overtime. It is hard to imagine that following a long history of paying overtime, during a time that employers have to remain competitive in order to support and maintain their nursing staff that such a move would occur.