Time to Stop the Abuse!
Kindred Healthcare Inc. operates hospitals, nursing centers, and rehabilitation services nationwide. In 2010, it was sued by its employees in California, who alleged that Kindred violated labor laws by failing to pay the correct overtime rate, failing to provide meal periods, and failing to give accurate itemized wage statements to its employees. After years of litigation, the parties agreed to settle. Kindred will pay the employees a total of $16.5 million for back wages, penalties, and attorneys' fees.
Kindred's employees work on Alternative Workweek Schedules (AWS). AWS agreements allow employers to legally schedule employees to work up to 12 hours per day within a 40-hour workweek without paying them overtime pay. Employees who work on AWS are vulnerable to exploitation and should pay attention to the following issues:
How Should They Be Paid if They Work Outside the AWS Shift:
For a 10-hour schedule, any work beyond 10 and up to 12 hours shall be paid “time and a half.” For a 12-hour schedule, any work beyond 12 hours shall be paid “double time.” Any work done on a fourth 12-hour day must be paid double time after 8 hours.
How Should They Be Paid if Required to Work Lesser Hours Than on the AWS Shift?
The Kindred employees were “flexed off” and required to work fewer hours than those in their AWS agreement. “Flexed off” employees must be paid time and a half for work beyond 8 hours for the day but less than the 10 or 12 hours required by the AWS.
How Should Their Overtime Pay Be Computed if They Are Paid A Shift Differential or Shift Bonus?
A differential pay is considered part of wages and included in computing the overtime rate. Example: Employee is paid $30 per hour plus a $3 per hour shift differential. If the employee worked overtime, the differential pay of $3 per hour is included in computing the overtime rate. Thus, the regular rate should be $33 per hour. For time and a half, the overtime rate is $49.50/hour, not $45/hour.
How Many Meal Breaks Should They Get During a 10- or 12- Hour Shift?
Hourly employees are entitled to a 30-minute uninterrupted meal period for every 5 hours of work. Twelve-hour shift employees are entitled to a second 30-minute meal period, which can be waived in writing. If a meal period is not provided, or not provided on time, or is interrupted, employees are entitled to one additional hour of pay for each day the meal break is missed. Missed meal periods also raise the issue of overtime pay.
How Many Rest Breaks Should They Get During a 10- or 12- Hour Shift?
Employees who work 12 hours per day are also entitled to at least three 10-minute rest breaks. If employees missed any of these rest breaks, they are entitled to an additional one hour pay at their regular rate.
(C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal's Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum. He is a graduate of Georgetown University Law Center Washington, D.C. and the University of the Philippines. Visit his website at www.joesayaslaw.com or contact his office at (818) 291-0088 for a no-cost inquiry.)