Can a hourly Registered Nurse working in a hospital setting for a staffing agency work over 40 hrs. without rec. overtime pay? If the answer is no; Is there a way that the Registered Nurse can change their status to a salaried employee and work over 40hrs. without being paid overtime and just be paid at straight time?

Registered nurses CAN be exempt, but the employee doesn't get to make the decision. However, most employees of staffing agencies are paid on an hourly basis with overtime over 40 hours in a workweek. Are you the employee or the employer?

I am the employee. I keep hearing things about being exempt or non-exempt. Can you please explain what that means and how I would go about becoming exempt. I normally work (3) 12 hr. shifts per week for my agency and would like to work an addtional 12hrs. for them which would put me at 48hrs. per week. I do not care about being paid overtime as long as I get straight pay for any hrs. over 40. However, my employer says they cannot do this legally and have to pay me OT for any hrs. worked over 40. Because of this I am unable to work all my hours with this one agency and would have to go elsewhere.

You don't just "become" exempt. Your job duties need to qualify you for exempt status AND your employer must be willing to pay you on that basis.

Any employee can be legally treated as non-exempt. The same is not true for exempt status; your job duties MUST meet one of the exemptions under the Fair Labor Standards Act. In addition, while an employer cannot treat a non-exempt employee as exempt, an exempt employee can legally be treated as non-exempt.

If there is any question about whether or not your job duties qualify for exempt status, your employer is doing the correct thing by treating you as non-exempt.

They are correct that they are required by law to pay time and a half for any hours over 40 in a week. Neither you nor they have any control over that. You cannot legally waive your right to overtime and they cannot NOT pay it.

In some states, and while I'm not certain I THINK Maryland is one of them, nurses are, under state law, defined as non-exempt. If I am correct, then nothing either you or your employer can do will make you exempt. Sorry.

Because of this I am unable to work all my hours with this one agency and would have to go elsewhere.

Are you working for ONE client of the agency or multiple clients?

If you are not working more than 40 hours for a single client company, but work over 40 hours for the agency, the agency "eats" the overtime. In that case, the staffing firm will have you work overtime only when it has no other options to meet client needs.

I run a staffing company and we bill clients an overtime rate if our employee works more than 40 hours in a work week for the client. (and, of course, the employee is paid overtime for the hours over 40).

A register nurse (RN) is an exempt employee as define under 29 CFR 541.300 (e)2 as noted here.

§ 541.301 Learned professionals.

e(2) Nurses. Registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption. Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations.

The fact that your employer is paying you an hourly rate makes you a non-exempt employee. An exempt worker must be paid on a salary basis. All the employer has to do is to pay you on a salary basis of at least $455 a week or more and your problem is resolve. You may/can negotiate with the employer a salary that you both live with to compensate you for your 48 hours that you want to work.

Keep in mind that although a nurse CAN be an exempt employee under Federal law, the law allows an exempt who qualifies as exempt to be paid as non-exempt, and it is the choice of the employer, not the employee, which is used. We have also not addressed the question of state law.

Read the original post.

The OP does not WANT to be exempt. She wants to work more than 40 hours and get straight pay for the hours worked over 40.

And, of course, it doesn't matter what the employee wants, anyway. :rolleyes: I defer to ScottB's original response. :)

The subsequent post says, "how do I go about becoming exempt".

I stand by my answers as well. What she wants is simply not going to happen.

If she is exempt, she does not get straight pay or any other kind of pay for hours over 40 - she gets her regular salary whether she works 20 hours or 60 hours.

If she is non-exempt, then she gets time and a half for all hours over 40. Even if she only wants straight time, the employer is legally prohibited from paying any other way but time and a half.

It is not the employee's choice whether she is exempt or non-exempt, no matter what her duties qualify her to be.

It is not the employee's choice whether she is exempt or non-exempt, no matter what her duties qualify her to be.

Correct. What she wants to happen (more work and more pay) won't. Can't, legally, not working for one employer.

She could go to another agency and get additional hours by working for the two of them, but there is the possibility that she could end up working at one client site for both agencies and end up working overtime at that site. In that case, she would then be entitled to overtime, but only the client company would be on the hook for it. There was a recent court case about just that kind of situation (http://www.ebglaw.com/article_1327.pdf).