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Library - Employment Law
Wage Claims, Overtime & Other Employee Compensation
IS A TWO-RATE SYSTEM OF PAYING NURSES AND
HEALTH CARE PERSONNEL LEGAL?
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Q:
I work as a nurse in
a hospital. I work 4 days a week. Twice a week I work 12
hours per shift and the rest of the days I work 8 hours
per shift for a total of 40 hours per week. When I work
an 8-hour shift, I am paid $30 per hour. When I work the
12-hour shift, I am paid $26 per hour for the first 8
hours and $39 per hour (or time and a half) for the next
4 hours. I have computed my earnings during the 12-hour
shift and it looks like I am still being paid an average
of $30 per hour for all the 12 hours I work and my
overtime hours do not really matter. This is true not
only for me but for all the other nurses I work with. I
was told that this is company policy and that it is
perfectly legal because we are still being paid overtime
at the premium rate. This does not seem fair. Is this
really legal? |
A: Nothing prohibits
employers in California from instituting different rates of pay for
their various employees. Such differences may be justified according
to certain criteria like the employee’s duties, skill level, or
years of employment with the company. Therefore, Nurse A may be paid
$30 hourly and Nurse B may be paid $26 hourly.
However, your situation seems to be different. You are
paid $30 hourly and $26 hourly depending on whether you are working
an 8-hour shift or a 12-hour shift. All things being equal, and
there is no other reason for the two-rate system, your employer
might be trying to circumvent California’s overtime laws.
The following are considered overtime work:
1) Any work in excess of eight hours per day;
2) Any work in excess of 40 hours in a work week;
3) Any work done on the first 8 hours on the seventh
consecutive day of work in a work week.
These overtime work must be paid at the rate of no less than one and
one-half times the regular rate of pay.
Although it appears that your employer is paying you
overtime, the employer really is not. The way the rates are
assigned, and the way that the lower base rate only kicks in when
you incur overtime hours, seem to indicate that your employer really
only wants to pay one hourly rate (which in your case is $30 per
hour). Since your employer does not want to pay overtime at that
rate, the lower base rate is thus instituted for the shift that will
incur overtime. That way, the employer pays the same hourly rate for
all 40 hours worked in a work week. This explains why you seem to be
making the same amount ($30 per hour) for all 40 hours of work,
regardless of whether you work 12-hour shifts twice a week or 8-hour
shifts 5 days a week.
In this instance, you may be entitled to collect
additional compensation for overtime pay, interest and penalties.
The law also allows you to recover attorneys’ fees. You may wish to
consult with an experienced employment attorney as to what you can
do in this situation so you can explore your options.
©
Law Offices C. Joe Sayas, Jr.
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[C. Joe
Sayas, Jr., Esq. is an experienced trial attorney helping to protect
the rights of employees, policyholders, and consumers. Mr. Sayas has
obtained multi-million dollar recoveries for his clients and their
families in cases involving serious personal injuries, wrongful
death, insurance claims, wage and hour (overtime) litigation and
unfair business practices. He is currently Class Counsel to
thousands of employees seeking recovery of back wages and consumers
seeking damages arising from the sale of insurance policies. He is a
graduate of Georgetown University Law Center Washington, D.C. and
the University of the Philippines.]
Disclaimer:
As a public service, the Law Offices of C. Joe Sayas, Jr. has
prepared informative articles on topics of interest to consumers and
policyholders. Nothing contained in these articles should be
construed as creating or intending to create an attorney-client
relationship or purporting to give legal advice on individual
matters. Due to constant changes in the law, exceptions to general
rules of law, and factual differences, please seek professional
legal advice before acting on any matter.
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