Get Paid What You’re Worth
Can your employer require you to work overtime without additional pay?
The following was posted on AAPC’s Facebook page by a member:
I work as a coder for a great company, the pay is good, I like what I do. My only issue is that they want us to work overtime every day, I’m talking about 12 to 15 hours everyday of the week and sometimes even Saturday. I’ve been there for a year now and that’s the only issue I have with them. The other coders are ok with it and no one is complaining other than me. the manager kept telling me the situation is temporary and they will hire more people but they don’t. I asked her to work my 8 hours only but she won’t allow me because it’s not fair for the others. Now I’m thinking about quitting because I’m physically and mentally exhausted. I have a family to take care of and I can’t do it all. What would you do if you were in my place?
This post received over 164 comments in 14 hours. Some coders sympathized. Some said tough it out. Some said quit. It’s an individual decision, but here’s the law.
Know Your Rights
The government only just recently addressed this concern. The U.S. Department of Labor (DoL) announced a final rule on Sept. 24, 2019, to make 1.3 million American workers eligible for overtime pay. Whether an employee is asked to work over 40 hours or volunteer to do so, the employer is “generally required” to pay the employee “premium pay” for their time, according to the DoL.
The Fair Labor Standards Act (FLSA) mandates employers to pay their “nonexempt” employees at least one and one-half times their regular rate of pay for work they perform in excess of 40 hours (in a seven consecutive day period). The regular rate of pay cannot be less than the minimum wage for the employee’s area. Weekends, holidays, or scheduled days off do not count unless overtime hours are worked on such days. This overtime pay should be included in the pay period for the week in which it was earned.
The final rule raised the “standard salary level” from $455 per week to $684 per week, which amounts to $35,568 per year. It also raised the total annual compensation requirement for “highly compensated employees” from $100,000 to $107,432 annually. Employees who make more than the standard salary level or who are highly compensated are exempt from the FLSA. Mandatory overtime with or without pay is not restricted by the FLSA for exempt employees.
Are you exempt from the FLSA?
Generally, you are an exempt employee if you are:
- Paid more than $35,568 per year;
- Paid on a salary basis (guaranteed minimum); and
- Perform exempt job duties (managerial).
The definition of “exempt job duties” could be construed differently from employer to employer. According to the FLSA, you are exempt if you are a “professional” whose work requires “advanced knowledge.” The DoL states, “Advanced degrees are the most common measure of this, but are not absolutely necessary if an employee has attained a similar level of advanced education ….”
Even if you are exempt from the FLSA, you are entitled to some form of compensation for overtime work. Finalized by the DoL on May 20, 2020, employers may compensate salaried employees with bonuses or incentives as part of their regular rate of pay in computing overtime. This also applies to nonexempt employees whose hours vary from week to week, known as a “fluctuating workweek.”
Who is a Nonexempt Employee?
So, your first assignment is to determine whether you are nonexempt from the FLSA. Employees who work for certain businesses or organizations are covered by the FLSA:
- If the employer has an annual dollar volume of sales or business of at least $500,000
- Hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies
Employees are also protected by the FLSA if their work regularly involves them in commerce between states. Commerce includes office work that will be sent out of state such as filing claims, calling payers, and handling medical records.
In addition to these federal laws, some states also have overtime laws. Employees are entitled to whichever law has the higher standard.
If You Are an Nonexempt Employee
Come to an agreement with your employer about what is compensable hours. If you eat your lunch at your desk while working, this is technically compensable time. If your employer disagrees, then they cannot require you to work through your lunch time.
Check your state’s labor laws. For remote employees, who work in one state and the employer operates in another, your state’s labor laws apply to you. Do not assume your employer is minding the laws that apply specifically to you. Make sure you notify your employer if you move to another state as this may change the applicable regulations for payroll, workers’ comp, and more.
What if you are an independent contractor? On Sept. 22, 2020, the DoL announced a proposed rule addressing how to determine whether a worker is an employee under the FLSA or an independent contractor. See the proposed rule for more information. The comment period for this rule ends Oct. 26, 2020.
What are the consequences? Employers with repeated or willful violations of section 206 or 207 can be penalized. The maximum civil monetary penalty on or after Jan. 16, 2020 is $2,050.
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