Home Health & Hospice Week

You may be on the hook for employees who work off the clock.

The way you pay your employees is rife with landmines under federal labor law, so you had better toe the compliance line strictly or risk major penalties.

“Violations of the wage and hour provisions of the Fair Labor Standards Act (FLSA) and analogous state statutes are the single largest liability exposure for employers,” warn attorneys Joseph Sokolowski and Lindsay Zamzow of Fredrikson & Byron in Min-neapolis. “Since 1997, wage and hour litigation has tripled while most other employment litigation has stabilized or declined,” the labor law attorneys note in an article on their Web site.

“Because the FLSA has attractive damage remedies and often involves large numbers of plaintiffs in a single action, it is the employment lawsuit du jour,” they note. “Under the FLSA, plaintiffs can recover double the amount of actual damages and attorneys’ fees.” Attorneys’ fees can reach as high as seven figures, they stress.

But you can learn to navigate the minefield enforced by the Department of Labor’s Wage & Hour Division, assured attorney John Gilliland II in a recent Eli-sponsored audioconference series, “40 Wage-and-Hour Mistakes Healthcare Providers Make--And How to Avoid Them.”

Keep watch for potential violations lurking in these seven hot spots, Gilliland advised:

1. Regular rate. Under FLSA, overtime pay hinges on the rate calculations used to figure it. Employers must calculate an employee’s “regular rate”--total remuneration for the pay period divided by total hours worked during that period, Gilliland explained.

That’s the rate you must use to figure a non-exempt employee’s time-and-a-half rate of pay. You also use it to make sure you’re paying the employee at least minimum wage.

“The problem is many employers have never even heard of the regular rate,” Gilliland noted. “Or if they’ve heard of it, they don’t calculate it properly.” This is an easy compliance fix, so be sure to sharpen your math skills. 2. Unauthorized overtime. Many home health agencies feel they shouldn’t have to pay for overtime they don’t authorize--but that can land them in hot water. Under FLSA, an employer has to pay for any overtime hours they “permit or suffer” to be worked, Gilliland pointed out. That doesn’t mean the same thing as authorizing the hours.

If you refuse to authorize the hours but still know of them, the law views you as suffering or permitting the work and therefore you’re on the hook to pay for it, Gilliland maintained. You can discipline or discharge the employee, but you should still pay [...]