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Exempt Employee Abuse - Ohio

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  • Exempt Employee Abuse - Ohio

    My wife is an RN, works hourly 3 days a week, 8 hours each. She was scheduled to work today (Saturday) and tomorrow (Sunday) 7:00 AM to 3:30 PM.

    We also have a bunch of snow. Our county is under a "Level 2 Snow Emergency" which means "Roadways are hazardous with blowing and drifting snow. Only those who believe it is necessary to drive should be out on the roadways. Contact your employer to see if you should report to work."

    Being the concientious people we are, we braved the terrible snow this morning to get her to work on time. Not many of her co-workers chose to do so.

    At the end of her shift today, she called to give me their management's edict, which includes:

    1. They are being given a room to sleep in. They are being held against their will and cannot go home. For this they are also being given "on call" pay, which is a token, like $4/hr.

    2. She is required to work tonight starting at 11:00 PM through at least 3:30 PM Sunday and perhaps longer -- 16+ hours. This is being done at straight pay.

    3. Of course, her nurse manager is sitting home cozy in her home. I am able to drive and pick her up along with whatever other nurses they need. Of course, my wife who NEEDS this job did not make my offer officially.

    4. This organization is grossly mismanaged. The nurses are not permitted to take breaks. They are rarely permitted to take lunch. They aren't even allowed to take bathroom breaks more often than not. They can't take vacation (even scheduled 6 months in the future) unless they find their own replacements, plus a dozen other examples. I am incredibly upset with the whole situation. It's clear through the years their that the management is grossly incompetent.

    5. The hospital has a policy of "crisis pay", which they have clearly stated they are NOT using. That is something like an extra $10/hr above and beyond base pay, to be used in extraordinary situations. She will continue to be paid straight pay.

    I realize that the Ohio Supreme Court ruled not long ago that is it not against the law to be a jerk -- otherwise, these guys would be at the head of the list. And I also realize that mandatory overtime is needed on occasions like this. But also, my wife has physical limitations -- she cannot work a 12-hour shift being on her feet that long, let alone what they are asking for. I am concerned this is going to cause permanent injury to her. My suggestion to her was to resign immediately -- her health is not worth the paycheck. But like I said, she simply does not want to make a scene, nor quit the job.

    So I guess My questions are:

    1. The "you sleep in our bed, you cannot leave, and get on-call pay" is clearly wrong, but is it illegal? From my perspective it sounds like kidnapping. Part of me wants to call the police.

    2. If this situation does not qualify for "crisis pay", probably nothing does.

    The so-called floor manager has always said in the past "in the event of bad weather, I will pick you up myself", and now even she does not come in. There is nobody that my wife is aware of to talk to, above her nurse manager. We've tried. The entire floor is ready to revolt at the moment.

    If we have no legal recourse, I need to find a way to get her another job. But in the meantime, is there anything else I can do, short of going up there and throwing snowballs at the building? Granted, I am really PO'd right now, but I'll get better but at the moment a big part of me wants to hit them hard!

    Thanks in advance for your advice.

    Kevin

  • #2
    As long as they are paid appropriately, employees can be required to work 24/7/365 except in specifically named instances (airline pilots, long haul truckers).

    Therefore, if they are paying your wife properly, there is no recourse she has other than to dust off the resume.
    Not everything that makes you mad, sad or uncomfortable is legally actionable.

    I am not now nor ever was an attorney.

    Any statements I make are based purely upon my personal experiences and research which may or may not be accurate in a court of law.

    Comment


    • #3
      Originally posted by KArnold002 View Post
      1. The "you sleep in our bed, you cannot leave, and get on-call pay" is clearly wrong, but is it illegal? From my perspective it sounds like kidnapping. Part of me wants to call the police.
      She can leave, possibly at the cost of her job, so it is not kidnapping and the police would laugh at you if you called. There is nothing wrong, let alone illegal, about requiring an employee to stay on the premises while sleeping AND compensating them for the time.

      Originally posted by KArnold002 View Post
      2. If this situation does not qualify for "crisis pay", probably nothing does.
      There is no law requiring crisis pay, so it is solely up to the discretion of the company to decide to pay such and under what circumstances.

      Originally posted by KArnold002 View Post
      The so-called floor manager has always said in the past "in the event of bad weather, I will pick you up myself", and now even she does not come in. There is nobody that my wife is aware of to talk to, above her nurse manager. We've tried. The entire floor is ready to revolt at the moment.

      If we have no legal recourse, I need to find a way to get her another job. But in the meantime, is there anything else I can do, short of going up there and throwing snowballs at the building?
      No legal recourse. I am trying to imagine how I would staff a facility charged with caring for the lives of people without doing something along the same lines.
      Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

      Comment


      • #4
        Kevin, two things I'd consider are :
        • Work to Rule, and;
        • if they're not organized, they need to become organized...soon!

        Comment


        • #5
          It is not at all unusual for hospitals to implement policies like this in the event of bad weather. For obvious safety reasons the hospital would prefer that as few employees as possible are out on the roads. OT isn't due until the employee has worked more than 40 hours. It does not kick in, just because they worked more hours and they are usually scheduled to work.

          Why would working more hours cause an injury or damage her health?
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

          Comment


          • #6
            Scott/ElleMD/et. al.,

            A couple of questions:

            Is it legal to pay less than MW for the sleep/on-call time?

            Would the "sleep/on-call" time be counted as hours worked for the purposes of overtime?

            Comment


            • #7
              Since the time spent sleeping/on-call need not be paid at all, if the employer wishes to pay anything at all for that time, they may pay less than MW. It would not count toward OT unless the employer wishes it to as it is not time worked.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

              Comment


              • #8
                Originally posted by ElleMD View Post
                Since the time spent sleeping/on-call need not be paid at all, if the employer wishes to pay anything at all for that time, they may pay less than MW. It would not count toward OT unless the employer wishes it to as it is not time worked.
                Only some of the sleep time is not paid, up to a max of 8 hrs per shift of 24 hrs or less...

                Per: FLSA-255 December 23, 1976 (Opinion Letter)

                "...As indicated in section 785.21 of the enclosed copy of 29 CFR Part 785, employees who are required to be on duty for less than 24 hours are working even though they are permitted to sleep or engage in other personal activities when not busy.
                ... In Mr. Clark's case, the attendants who are required to be on duty for specified hours are working even though they are permitted to sleep when not responding to a call. It makes no difference that the attendants are furnished facilities for sleeping. The time is given to the employer. The attendants are required to be on duty and the time is hours worked... "

                Also
                Section Number: 785.21
                Section Name: Less than 24-hour duty.
                An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime. (Central Mo. Telephone Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948); Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 (D. Minn. 1943); Whitsitt v. Enid Ice & Fuel Co., 2 W. H. Cases 584; 6 Labor Cases para. 61,226 (W.D. Okla. 1942).)
                Last edited by ArmyRetCW3; 03-10-2008, 02:34 PM.
                ========================================

                "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

                Comment


                • #9
                  Originally posted by cyjeff View Post
                  As long as they are paid appropriately, employees can be required to work 24/7/365 except in specifically named instances (airline pilots, long haul truckers).

                  Therefore, if they are paying your wife properly, there is no recourse she has other than to dust off the resume.
                  Well, actually I found out the "on call" pay is really about $2/hr. I'm not sure that is "paid appropriately" while being required to be onsite.

                  Thank you.
                  Kevin

                  Comment


                  • #10
                    Originally posted by ScottB View Post
                    She can leave, possibly at the cost of her job, so it is not kidnapping and the police would laugh at you if you called. There is nothing wrong, let alone illegal, about requiring an employee to stay on the premises while sleeping AND compensating them for the time.
                    I can see that *IF* they were compensating her for her regular rate, but they were not -- only a fraction thereof. She gets around $24/hr normally.

                    Thank you.
                    Kevin

                    Comment


                    • #11
                      Originally posted by joec
                      Is this a level one trauma hospital?
                      Joe, yes it is. What is your point?

                      She does not work a high-risk area. I'm not sure of the importance of this.

                      They also have several of their own policies they have broken. Crisis pay, and supposedly having people to go get people who cannot drive on their own, which didn't happen, and implementing different policies depending upon which floor you worked on. But like I said, it's not a crime to be incompetent, unfortunately.

                      I guess the only "legal" point I'm not clear on, is forcing someone to stay onsite against their will, for an hourly employee, and only paying a fraction of their normal pay. Surely that can't be legal, can it?

                      Thank you.
                      Kevin

                      Comment


                      • #12
                        Originally posted by ElleMD View Post
                        Since the time spent sleeping/on-call need not be paid at all, if the employer wishes to pay anything at all for that time, they may pay less than MW. It would not count toward OT unless the employer wishes it to as it is not time worked.
                        Elle,

                        So you are saying the hospital could require, in their infintesimal wisdom, for my wife to stay there 24x7x365, against her will, and not pay?

                        Come on. Yes, my example is ridicululous. But in my opinion, no less so than REQUIRING her to stay there for anything less than straight pay, let alone a pittance. Yes?

                        Thank you for responding.
                        Kevin

                        Comment


                        • #13
                          Originally posted by ElleMD View Post
                          Why would working more hours cause an injury or damage her health?
                          Elle,

                          My wife is able to work comfortably for about 10 hours/day without breaks/lunch. Past that she has back/hip trouble. She used to work 14 hours shifts and no longer can do so.

                          Thank you for posting.
                          Kevin

                          Comment


                          • #14
                            Kevin,
                            How did this all play out? I completely understand your anger and frustration.
                            I don't see how the hospital could force their staff to stay onsite, unless they had so many staff nurses calling to say they weren't able to come in. Usually, this becomes a problem if it is the shift that directly follows yours. In your wife's case that would have been the 3:30p - 11:00p shift. Making her stay for the 8 hours inbetween shifts doesn't sound right. I don't know how they would expect her to get any sleep from 3:30 to 11:00 and be able to provide adequate care for the entire night - that's a dangerous situation.
                            Nursing is a very demanding profession both physically and mentally , a nurse must be able to competently assess their patients status along with providing care. Imagine a patient who has just had surgery and requires ongoing monitoring because of the possibility of Post op complications such as bleeding, pneumonia or reactions to medication -all which can present quickly and are life threatening. It would be ridiculous to think that a nurse who has been working without sleep is going to be able to catch all the symptoms. Nurses also have the right to protect their licenses if they feel they are being jeopardized.
                            I really feel for your wife, working a 12 hour nursing shift is very tiring. Constantly being asked to work more than that leads to burn out. It is one of the reasons there is a nursing shortage.

                            Comment


                            • #15
                              If your wife has medical restrictions that don't allow her to work more than XX hours per day, then the employer needs to know about that. Whether or not they are able to accommodate the restrictions, however, is up to them.

                              Has she talked to her licensing board? What do they say about the hours and "forcing" the employees to stay? Of course, unless there is a gun to your head, "forcing" is an overstatement.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                              Comment

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