Fact Sheet #31: Nursing Care Facilities Under the Fair Labor Standards Act

Minimum wage and overtime pay violations also occur when employers make deductions or demand reimbursement for the cost of required uniforms or equipment.

Individuals not otherwise employed by the facility who volunteer – without expectation of pay – to attend to the comfort of nursing home residents in a manner not otherwise provided by the facility are not considered employees under the FLSA. However, individuals (including residents) who perform work of any consequential economic benefit to the facility are employees and entitled to FLSA minimum wage and overtime.

Overtime pay violations often occur when employers:

• Fail to pay overtime after 8 hours of work in a day for workers (both full time and part time) who are under the "8 and 80" system.
• Pay overtime after 80 hours worked during a biweekly period rather than after 40 hours in a workweek to employees not under the "8 and 80" system.
• Fail to combine hours worked in more than one department or at more than one facility when determining the total overtime hours worked.
• Fail to include in calculating overtime hours the time spent or hours worked while performing on-call assignments.
• Fail to include shift differential, bonuses or on-call fees in calculating an employee's regular rate.
• Fail to pay overtime to non-exempt, salaried employees (e.g., clerical staff, cooks, and activities directors).

Other Pertinent Labor Laws

• The Immigration and Nationality Act, as amended by the Immigration Reform and Control Act requires employers to complete and maintain I-9 forms to verify the employment eligibility of all individuals hired after November 6, 1986, and contains certain anti-discrimination provisions.
• The Family and Medical Leave Act entitles eligible employees of covered employers to take up to 12 weeks of unpaid job-protected leave each year for specified family and medical reasons.
• The Employee Polygraph and Protection Act prohibits most employers from using any type of lie detector test either for pre-employment screening of job applicants or, with certain exceptions, during the course of employment.
• The Nursing Relief for Disadvantaged Areas Act of 1999 provides for the enforcement of employment conditions attested to by employers in disadvantaged areas employing H-1C temporary nonimmigrant registered nurses.
• The McNamara-O'Hara Service Contract Act requires the payment of prevailing wages and fringe benefits to service employees on contracts for the provision of services to the Federal government.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.dol.gov/agencies/whd and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.