Revoking on-call hours for nurses

[CaseyStelken]

Hi there! I'm a first-time user, but I feel I'll be using this forum frequently in the future...

I'm a Registered Nurse who works for a Hospice facility in Eastern Iowa. We've recently been introduced to a new management team who has made an awful lot of changes, some of which are good, and some of which are... questionable, to say the least.

It is common practice in the medical field to put staff "on-call" if the current patient census is not high enough to necessitate the presence of all of the employees scheduled for that shift. So, in these situations, we take turns being on-call, and miss out on our full wages during that time. During this time, we are instead paid a wage of $4/hr to be readily available: to stay at home (or at least close to the facility), to keep our phones close at all times, and to not have any "adult beverages," so that if the patient census changes, we can be available at a moment's notice to come in and do our duty.

In very rare cases, the census and staffing is such that we are "House Requested," meaning it's determined that we absolutely will not be needed for that shift, and we have the day off. In this case, we receive no pay to be "on-call," because we will not be needed, so we're free to go and do as we would on any other day off.

At the facility for which I work, we have a very small staff of nurses and nurse aides, so we operate very independently of management. Historically we have always assessed the staffing before the next shift to determine whether or not we have enough, or too much, staffing, and we respond appropriately. In cases where we have too many staff scheduled, we rarely "House Request" them, and usually put them on-call, because it's such a small staff, and such a small facility, that things can change rapidly and, in most cases, not much change in patient census is required for us to need the on-call staff members to come in and help.

Sorry for the long explanation, but that's important to the story. Here's the problem: recently our nurse manager decided that we're putting staff "on-call" too often (this is mainly because during the past week the census has been unusually low, likely due to the nice weather we've been having here in Eastern Iowa), and she believes we should use the "House request" option more often, to save the facility a few bucks when patient census is particularly low. This seems reasonable, and no one really disagreed with her point... but then she retro-actively removed everyone's "on-call" pay from the past two weeks before today's paychecks were issued.

As far as I'm concerned, this isn't legal. We were being paid a wage (although a small one) to stay at home (or very close to home; we certainly couldn't leave town), watch our phones, and be available, sometimes for as long as 12 hours at a time, because most of us work 12-hour shifts. I've been helping my parents with a lot of things at their house lately, but they live over an hour away, so I certainly couldn't go check anything off of that to-do list. And if a friend or family member were to come to visit me, I certainly couldn't have enjoyed an adult beverage with them. My point is, we're really getting cheated here, and I can't imagine what she's doing is legal. Some people lost a good chunk of money off of today's paycheck that they were expecting from being on-call so much over the past two weeks, and they were already going to be receiving a reduced paycheck from not being able to work their full hours.

Anyway, sorry that this is so long-winded, and thank you for reading!

- Casey

 

[cbg]

Just to start out with, with very, very limited exceptions, if you are being paid $4 an hour for being on call, you are receiving $4 an hour more than the law requires that you receive. As far as the law is concerned, you are not due any pay for time you did not work, and being on-call is not considered working in the large majority of circumstances. Not being able to travel or drink alcohol is NOT considered restrictive enough to make the time compensable.

So, with that in mind: Do you have a legally binding and enforceable contract to receive on-call pay?

 

[PayrollHRGuy]

You seem to have two questions. Your "on call" status doesn't seem to meet the standard that the DOL would consider it working. So the $4.00/hour you do get for it would seem to be a nice perk and not required pay.

On-Call Time An employee who is required to remain on call on the employer's premises or so close to the premises that the employee cannot use the time effectively for his or her own purpose is considered working while on-call. An employee who is required to carry a cell phone, or a beeper, or who is allowed to leave a message where he or she can be reached is not working (in most cases) while on-call. Additional constraints on the employee's freedom could require this time to be compensated. See Regulations 29 CFR 785.17.

Example #12: An assisted living facility has four LPN wellness coordinators who are paid hourly. They rotate being on-call each week. They are required to carry a cell phone and be within 45 minutes of the facility when they are on-call. They are not paid for all time spent carrying the cell phone but are paid for time spent responding to calls and time when they have returned to work at the assisted living facility. Does this comply with the FLSA? Yes.

Your second issue seem to be a complaint on the changes the new management has made in how often you are "on call". That is completely within their rights. And as you said yourself the staff has pretty much been managing itself. That has ended. They don't call management management for no reason.

Here is a link to a DOL Fact sheet specifically dealing with nursing issues. It is where the quote above comes from and may be of help in the future. https://www.dol.gov/whd/regs/compliance/whdfs53.htm

 

[CaseyStelken]

You seem to have two questions. Your "on call" status doesn't seem to meet the standard that the DOL would consider it working. So the $4.00/hour you do get for it would seem to be a nice perk and not required pay.

I only have one question, and that's whether or not it's legal for her to remove time from our paycheck before the paycheck is issued. Our facility has a policy in place wherein we are payed an hourly rate of $4/hr to be available on-call when patient census is not sufficient for us to work the hours that we were scheduled for that shift.

Your second issue seem to be a complaint on the changes the new management has made in how often you are "on call". That is completely within their rights.

Of course it's within their rights; that's why I said no one disagreed with it. My issue is with their decision to make this change retroactive.

And as you said yourself the staff has pretty much been managing itself. That has ended. They don't call management management for no reason.

Although this isn't relevent to my question, I just want to clarify that I've worked several years in management myself, and I understand why it's called management. But the issue of our staff managing itself has, in fact, not ended. We still determine on a daily basis what our own staffing needs are, because our new management has not taken over that role like our previous management had. Our new management isn't exactly present in our facility on a regular basis. For the majority of the time, we're on our own to make these decisions.

Thank you for the kind feedback!

 

[adjusterjack]

I only have one question, and that's whether or not it's legal for her to remove time from our paycheck before the paycheck is issued.

Typically it is illegal for any employer not to pay you money that you have already earned.

You are free to file a wage claim with the Iowa Division of Labor Services and see how that goes.

http://www.iowadivisionoflabor.gov/sites/authoring.iowadivisionoflabor.gov/files/WAGE.claim_.pdf

Just make sure you think about the potential consequences of poking the bear. Sure, retaliation is illegal, but it is often subtle, in the future, and difficult to prove.

 

[NIV]

I only have one question, and that's whether or not it's legal for her to remove time from our paycheck before the paycheck is issued.

This is the issue. From your description of on-call time, it is not time worked so there is not a statutory requirement to pay you for it under employment law. Is there a contractual requirement? If you had a contract that stated how you would be compensated in regards to on-call time, that would be different.

Our facility has a policy in place wherein we are payed an hourly rate of $4/hr to be available on-call when patient census is not sufficient for us to work the hours that we were scheduled for that shift.

A "policy" is not a "contract". But, there may be some right that arises if employees are hurt from reasonably relying on the policy so some payment would probably be required for the time on call before being notified of the change even if the policy did not rise to a contract.

 

[HRZ]

DItto as to above....you may have a solid point about the retroactive deduction of pay for services albeit standby already rendered ....but to poke the bear may produce unpleasant events and assignments downstream ...pick your battles with care .....

 

[PayrollHRGuy]

I only have one question, and that's whether or not it's legal for her to remove time from our paycheck before the paycheck is issued. Our facility has a policy in place wherein we are payed an hourly rate of $4/hr to be available on-call when patient census is not sufficient for us to work the hours that we were scheduled for that shift.

Since the $4.00 per hour isn't required by any labor law this really becomes a contract issue. You might want to contact a lawyer in your area.