A nurse who claims the Ohio nursing homes she worked at docked her pay for more than three years of lunch breaks that she rarely took can proceed with her case, a federal court ruled this week.
The nursing home owners had hoped to beat back the case by arguing that licensed practical nurse Donna Gifford was not, in fact, an employee, but rather a contracted nurse who would not have been able to prove full employment required to pursue labor law violations.
Instead, the court ruled Gifford’s case couldn’t be easily avoided by an early application of the “economic reality” test, often used to distinguish between employees and independent contractors. Workers paid as 1099 contractors are not typically considered employees and therefore not covered by the federal Fair Labor Standards Act. (The issue of temporary worker misclassification has been a high-profile topic this year.)
But increasingly, courts have been using additional standards to determine what constitutes an “employee.” Because healthcare managers exercise control over LPNs’ daily work, it is unlikely that they would be classified as an independent contractor, said Caroline J. Berdzik, a partner and labor and employment attorney at Goldberg Segalla.
She told McKnight’s Long-Term Care News on Wednesday that Gifford’s case illustrates a potentially dangerous wage and hour pitfall for long-term care providers.
“Even with proper policies, sometimes employees work through entire meal periods or do not have uninterrupted meal breaks. An employee who is non-exempt must be relieved from their duties during an unpaid meal period,” she explained. “Auto-deduct meal period programs expose long-term care operators to liability because there are situations where employees will not be able to take those meal breaks in part or in full, and it is difficult for employers to keep track of those exceptions.”
Gifford alleges that Northwood Healthcare Group and Garden Healthcare Group violated both the Fair Labor Standards Act and Ohio’s wage and hour laws. She had worked at the companies’ Whispering Hills Care Center and Capital City Gardens Rehabilitation and Nursing Center from 2019 through 2022.
She claims that at both facilities, the nursing homes applied a 30-minute meal break deduction to her daily pay, “even when patient care responsibilities interrupted her meal break or she was not able to stop for a meal break, resulting in unpaid overtime wages.” Her attorneys argued that the facilities continued the practice after she complained to management.
Gifford filed the complaint in late 2022; since then, at least 15 other employees with similar complaints have asked to join the case. In her Monday ruling, Judge Sarah D. Morrison of the US District Court for the Southern District of Ohio’s Eastern Division also appeared ready to let those others seek back pay, too.
They held direct patient care positions at six of the nursing home operators’ facilities across Ohio, which all had “virtually identical written policies on overtime compensation and meal breaks” that said employees who worked through meal breaks will be paid for their time, “regardless whether such work was authorized or not.”
Berdzik said providers can strengthen their policies and avoid potential lawsuits by having non-exempt employees clock in and clock out for meal periods so there is no question of the time taken for a meal period.
“With increasing scrutiny by state and federal agencies and an uptick in collective action wage and hour litigation, it is critical for long-term care providers to have a wage and hour audit conducted by an attorney to help ensure compliance with the myriad of evolving wage and hour laws,” she added.
