From a hospital's perspective, fending off such lawsuits is grueling, says Nancy Sheehan, vice president and general counsel at Catholic Health System, which has two hospitals in Buffalo, N.Y., and two more in the suburbs of Kenmore and Cheektowaga. The system was targeted in lawsuits filed in 2008. “It's a very time-intensive, labor-intensive process,” Sheehan says. “The overall premise really lacks merit, but certainly the impact is significant.”
In practice, someone manually overrides the system's automatic deduction when an employee reports not getting a full break. As Catholic Health slogs through the lawsuit's discovery process—court-mandated mediation failed—the staff is pulling five years of data from the timekeeping system to show the overrides, as well as tracking down paper records of override requests, which aren't kept by all departments but could prove that requested overrides are executed. The system also is compiling training logs showing employees have been instructed to report to managers when they're owed pay for working through breaks.
“There may be instances where a nurse may get paged from lunch and then either forgets to tell a manager or somehow it does get missed,” Sheehan says. “I was a nurse before I became a lawyer and worked a lot of midnights, and you do what you need to do and you don't really think about it.” But, she adds,” We have policies in place to try to prevent it from happening.”
Other hospitals contacted about being hit with the firm's lawsuits declined to be interviewed or provide comment because they generally don't talk about pending litigation.
Kevin Troutman, a former healthcare executive in human resources and now a labor lawyer, says he is advising clients to carefully review their timekeeping systems for vulnerabilities to lawsuits or enforcement actions.
“If an employee is not getting a full meal break and there's an automatic system assuming they did, that's going to be a problem,” Troutman says. “If you go all the way to trial, they're going to find a violation,” he says, adding that the damages will be double the amount of the wage discrepancy, plus attorneys' fees. “Suddenly that becomes a pretty big number,” he says.
Plaintiffs' lawyers and the government also are interested in instances when employees get work done off the clock before and after scheduled shifts, Troutman says. Another risk area is rounding. Under federal law, when employers round to the top of the hour when workers clock in and clock out, the rounding can't always favor the employer. That is, if the system rounds to 9 a.m. when someone clocks in at 8:55 a.m., the system can't then round down to 5 p.m. when the worker clocks out at 5:10 p.m.
“Nobody's trying to do anything wrong, but you could end up with a violation because of a technicality, and it could be a costly technicality,” Troutman says.
Nationally, the federal government has not identified healthcare as an area of particular interest, but an ongoing initiative by the Labor Department's New York office indicates significant vulnerability in the industry. Beginning in with nursing homes in 2005 and adding hospitals in recent years, investigators in New York have selected a few healthcare facilities for site visits and audits. Just over a third have been deemed in full compliance with the Fair Labor Standards Act.
In this year's inquiries, investigators scrutinized two hospitals and 11 nursing homes, which officials declined to identify. The effort secured back wages of $165,000 for 98 employees.
The numbers and types of facilities haven't been consistent, so the tallies aren't directly comparable from year to year, but the yield has been as high as $737,000 for 1,644 employees, perhaps indicating healthcare employers are “getting the message,” says Sonia Rybak, assistant director for the Wage and Hour Division in White Plains, N.Y.
Among organizations that require follow-up investigation, the compliance rate is generally very high, Rybak adds. “Unless there's new management—and then it's as if we've never been there.”