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Navigating PA Labor Laws: Many hospital PAs missing out on overtime pay? Is salary pay better than hourly?


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I am an ER PA and have recently discovered that none of the 3 hospitals that I have either worked at or currently applying to are aware of the FLSA laws affecting hospital PAs and overtime. Many believe PAs are exempt employees, like physicians. One position I am applying to is 7 12s and 7 off, with no overtime, paid hourly. 

Many hospitals, it seems, try to avoid the overtime situation by turning to an 80 hour work week, thinking they only have to pay overtime after 80 hours, but they don't realize that for 80 hour work week hospital PAs, every hour in excess of 8 hours in a day is obligated to time and a half pay. This seems to cause challenges for hourly paid ER PAs, since we work any day/time of the week.

Has anyone else run into this?  Does anyone work as part salary/part hourly? For ER PAs, I believe we tend to be hesitant to get paid salary because we will always ultimately work overtime, since we have to stick out our 12 hour shift till the end. It feels like a recipe for burnout and getting overworked. But I have heard of some people getting paid salary up to a certain percentage and then hourly pay kicks in after x amount of hours. Does this schedule work?

For those now familiar with the FLSA laws here's the link and more information:

 
Hourly employees
Alternatively, under the FLSA, employers may choose to pay PAs as hourly wage earners. If an employer chooses to pay PAs hourly, then the PAs do not fall into the “learned professionals” category or any other exempt category, and the employer is required under the law to pay them at least time-and-one-half for any hours over 40 worked in a week or for hospital-employed PAs, 80 hours over two weeks.
Special accommodation for hospitals
The FLSA provides a specific exception – applicable to hospitals and residential care facilities – to the usual rule that overtime is calculated on a seven-day work week basis. These employers can agree with their employees (or their representative, i.e. their union) to have a 14-day work week for purposes of calculating overtime. 29 CFR 778.601
There is an important caveat, however: if a hospital or residential care facility employer uses the 14-day work week, they are obligated to pay overtime for any hours worked in excess of 80 and they are obligated to pay overtime for all hours worked in excess of 8 hours in any given work day. Thus, if a hospital scheduled a PA (who is paid hourly) to work 8 10-hour shifts, the PA would be owed 16 hours of overtime, even though he or she only worked 80 hours in the 14-day period.
The regulations do not require the “double-counting” of overtime. Thus, if our hypothetical hospital scheduled a PA (who, again, is paid hourly) to work 10 10-hour shifts, the PA would be owed 20 hours of overtime, calculated either on the daily basis or on the +80 hours basis, but not on both (he or she is not entitled to 40 hours of overtime).
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Salary versus hourly

 

if the employer is open a lot more hours then you are scheduled always demand hourly

i.e. a hospital or UC center

Reason for this----- they can force you to work more when on salalry and they benefit huge from it -think 4 pa's working 50 instead of 40 hours and they have a free PA!!

 

If it is an out patient limited hours clinic where you are only there certain days maybe consider salary

i.e. my job clinic is open 8-5 and I work 3 full days - I am not worried about having to do a little extra as the staff all leaves by 5pm and I can too (and docuemnt from home if I really need to - which i don't)  point is the place closes down so they can't force hours of extra work from me

 

I always prefer an hourly (except once where I was hourly but the employeer was such a PIA about hours it was stupid) 

 

I also think they can ELECT to make you exempt (and if they do this you have no leg to stand on - you are exempt - you don't get to choose execpt what you written contract says....)

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26 minutes ago, ventana said:

I also think they can ELECT to make you exempt (and if they do this you have no leg to stand on - you are exempt - you don't get to choose execpt what you written contract says....)

I'm not going to say I'm sure about this but the law spells out who can and can't be made exempt and just about any licensed professional can be made exempt. My last employer made us hourly exempt but still paid 1.5 for anything over 40. Here I am exempt. So if my day runs long that's just part of the job. However if they ask me to do something materially different that adds hours, like a Saturday clinic, they pay 1.5 OT.

I still recommend against salary in most circumstances because, as pointed out above, it incentivises (if that is actually a word) the employer to take advantage.

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You will find various answers depending on the lawyer you talk to, and how much risk an institution is willing to take on classifying PAs as a learned profession (medicine). These are the actual qualifications under FLSA:

"For the FLSA section 13(a)(1) exemptions to apply, an employee generally must be paid on a salary basis of no less than $684 per week and perform certain types of work that:

  • is directly related to the management of his or her employer's business, or
  • is directly related to the general business operations of his or her employer or the employer's clients, or
  • requires specialized academic training for entry into a professional field, or
  • is in the computer field, or
  • is making sales away from his or her employer's place of business, or
  • is in a recognized field of artistic or creative endeavor.

FLSA Section 13(a)(17) exempts hourly paid employees who perform certain types of work in the computer field if they are paid at a rate of not less than $27.63 per hour."

It is very easy to argue that with NCCPA certification required for initial certification in all states, along with a minimum of 2 years of schooling specific to medicine, we can be considered exempt. However, it is also easy to argue that unless you have a set, yearly income based on a contract, and NOT an hourly wage, you cannot be considered it.  Usually, if you are assigned an hourly rate, you are entitled to overtime for every hour over 40 hours.  a lot of contracts state they will pay you straight time, but this is a employment law fallacy.  It does not matter what the hourly rate is: you are entitled to overtime pay for anything over 40.  

My current institution realized this a few years ago and switched all PAs to contract amounts per year, not hourly, with a set sum paid for any overtime shifts.  Vermont recognizes PAs as requiring specialized training so if you sign a contract, they can hold you to it.  

Interestingly, FLSA specifically identifies first responders and LPNs as being required to be paid overtime rates for anything over 40 hours a week.  To my knowledge, there has not been an EM PA/MD challenge to this.  

From your post, you can see that if you are paid hourly, you are entitled to overtime.  Question is:  What does your contract state?  Are you an hourly employee or exempt?  That is what ultimately determines it.

G

 

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