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BusinessColumnistsCarrie Mason-Draffen

Salaried nurses are out of luck on extra pay for on-call time

Salaried nurses are out of luck when it

Salaried nurses are out of luck when it comes to getting extra pay for on-call time. Photo Credit: Getty Images/iStockphoto / santypan

DEAR CARRIE: We are a group of registered nurses who are part of management at a major medical center. So we are exempt and salaried. Our official hours are 9 a.m. to 5 p.m., Monday through Friday. But every five weeks we take turns carrying the on-call phone. It’s a 24/7 responsibility, and if necessary, we have to report to the medical center during our off hours. That includes weekends, holidays and nights. And we must be able to get to work within three hours of getting a call, even in the middle of the night. Are we entitled to get any of that time back such as coming in late the next day or taking a day off during the week? — Wrong Number?

DEAR WRONG NUMBER: As exempt employees you can be asked to work any number of additional hours during the workweek and your employer doesn’t have to pay you for the extra time in days or money. That contrasts with the situation for hourly, or nonexempt employees, who have to be paid for all the time they work.

State labor law does prohibit employers from requiring nurses to work more than their assigned hours, except in cases of emergency. But alas, that statute wouldn’t apply to you as managers.

“They are not covered for overtime under state rules because their primary responsibility is generally to manage, not provide direct patient care,” said a state Labor Department spokesman.

DEAR CARRIE: After a year of being out of work, my daughter started working in the office of a driving school. She was hired to work from 10 a.m. to 5 p.m., replacing someone who left to become a real estate broker. After about three months, the former worker decided to ask for her old job back. As a result, the owner cut my daughter’s hours to just three a day. Now the office wants to consider her as an independent contractor. That means the employer isn’t concerned with paying her minimum wage or with deducting taxes from her wages. Is this legal? If she leaves, can she file for unemployment benefits? — Part-Time Surprise

DEAR PART-TIME: Your instincts are on target. Employers can’t arbitrarily declare someone an independent contractor, as that working relationship has to meet certain rules.

The independent contractor label appeals to many companies because those workers aren’t covered by labor laws. So employers don’t have to be concerned with paying them the minimum wage or with paying such things as unemployment-insurance taxes for those workers. And the companies don’t have to withhold taxes from their pay because independent contractors generally pay their own.

But before an employer can anoint someone with that title legally, the company has to make sure the working relationship justifies the change. Here is how the courts look at the issue, the U.S. Labor Department has said:

“In order to make the determination whether a worker is an employee or an independent contractor under the [federal Fair Labor Standards Act], courts use the multi-factorial ‘economic realities’ test, which focuses on whether the worker is economically dependent on the employer or in business for him or herself,” the department said. “Thus, applying the economic realities test in view of the expansive definition of ‘employ’ under the FLSA, most workers are employees.”

Have your daughter call the U.S. Labor Department for help in clarifying her status at 516-338-1890 or 212-264-8185.

As to whether she can resign and qualify for unemployment benefits, she will need to verify that with the state unemployment benefits office. Generally when an employee quits a job, he or she doesn’t qualify for benefits. But since the terms of your daughter’s employment have changed so dramatically, she should check to see if she would be eligible.

She should call the state Telephone Claims Center at 1-888-209-8124 for more unemployment benefits information.

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