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NEWS FROM ANA - June 2004

The U.S. Department of Labor's (DOL's) release of its final federal overtime regulations has refueled ANA's concern that registered nurses might be denied overtime pay for the extra hours they work. As one of its strategies to protect RNs, ANA joined a coalition that sent a letter to Capitol Hill lawmakers urging them to preserve the overtime rights of registered nurses.

Specifically, the lack of clear language in the new rules may open the door for employer attempts to reclassify nurses as exempt from overtime protections historically given to U.S. workers under the Fair Labor Standards Act. ANA General Counsel Alice Bodley, J.D., believes that nurses who want to retain their overtime protections then may have to go to the DOL or to court to determine their eligibility for overtime.

Under the new regulations, employees who are "learned professionals" and who earn a salary of at least $455 a week cannot earn overtime pay. ANA believes nurses do meet the criteria of learned professional, which is defined, in part, as employees who perform work that requires advanced knowledge in the sciences. Despite this, many nurses would be eligible for overtime pay if they are still classified by employers as hourly - not salaried - employees.

But the new rules also appear to make it easier to classify RNs as salaried employees, and salaried employees are not eligible for overtime. For example, the regulations permit nurses who are paid on an hourly basis to be viewed as salaried if they are guaranteed a minimum salary of $455 a week and their actual pay has a reasonable relationship to the amount of the salary guarantee. The regulations are also tilted against nurses in other ways. For the first time, the regulations allow for salaried employees to be docked pay in new ways - such as in instances of disciplinary action for infractions of workplace rules.

Another change in the rules involves the addition of an example of an exempt employee called a "team leader" within the administrative exemption. This employee is defined as one who leads a team of other employees in completing a major project. This team leader does not have to have direct supervisory responsibility to be exempt from overtime pay. Although it is unlikely that the administrative exemption will apply. The new rules further specifically name "first responders," such as firefighters and LPNs, as maintaining their overtime protections, while leaving RNs out.

The final rule also indicates that state laws and collective bargaining agreements can require greater protections beyond those outlined in the FLSA. However, the Coalition to Preserve Overtime Rights for Registered Nurses questions whether unionized workers ultimately will lose overtime protections or other benefits when they negotiate contracts under the new federal rules. (Some unions link their contract language on overtime to the FLSA standards.) On a positive note, the DOL increased the amount of money employees can earn before they no longer are eligible for overtime pay from the proposed $65,000 to $100,000.

The ANA will continue to work with the coalition, which also includes UAN, AFL-CIO, the American Federation of Teachers and the Communications Workers of America, as well as other groups and policymakers to ensure that nurses' overtime pay is protected. For example, coalition members are asking lawmakers to support an amendment to the FLSA sponsored by Sen. Tom Harkin (D-IA) that would reverse the harm to workers
caused by the new regulation.

Specifically, it provides that no category of worker currently eligible for overtime - including hourly-paid RNs - loses that right. In response to concerns, the Senate voted in favor of Harkin's proposal by a vote of 52 to 47 on May 4. Further, senators subsequently approved the corporate tax bill, which included the Harkin measure. The House still must take action. "Creating doubt about registered nurses' right to overtime pay threatens ongoing efforts to retain and recruit nurses - particularly in a time when mandatory overtime is a common practice and RNs are in short supply," Bodley said.

The new regulations are supposed to go into effect Aug. 23, 2004.

 

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