January 24, 2021

Volume XI, Number 24


January 22, 2021

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But We Need You to Work More Than 40 Hours This Week! Overtime and the Health Care Employer

Hospitals and other health care facilities often do not know exactly how many hours each week they may need nurses and other allied health staff to work. Other employees may get sick, have a baby, go on vacation, or patient censuses may spike. From the Emergency Department in a busy inner-city hospital to a burgeoning primary care practice in the suburbs, health care employers may need to request – or require – that employees work overtime.

Though the federal wage and hour law does not restrict health care (or any other types of) employers from requiring employees to work overtime, various state laws around the country do prohibit mandatory overtime by nurses and other health care workers. A recent case out of Pennsylvania is an example of how one hospital was required to pay back pay of $122,000 to a direct care worker it had fired for refusing to work overtime, and also reinstate her to her job.

At trial the direct care worker testified she was the mother of three young children, and she lived with her boyfriend. They worked opposite shifts so they did not have to pay for daycare. When her hospital employer told the direct care worker she had to work overtime, she told them she could not because she did not have anyone to take care of her young children during the time her boyfriend was working. Under the hospital’s policy, it terminated her after she refused four times to work overtime.

The court in Pennsylvania ruled that under the state’s statute prohibiting health care facilities from requiring overtime, the direct care worker had a “public policy” violation claim. Therefore, even though the statute did not expressly allow employees to sue or provide for express remedies for employees who are fired in retaliation for refusing to work forced overtime, the appellate court found she could bring the claim and also keep the $122,000 and get her job back.

Health care employers should also be aware that unions use mandatory overtime as a talking point for their organization efforts. The unions claim mandatory overtime harms patient care and even claim it leads to the shortage of available nurses. Human Resources and legal counsel in the health care industry should take note of not only all state or local laws that may restrict the health care entity’s ability to require overtime but also heed any complaints health care employees make about required overtime. Terminating an employee who complains can lead to costly judgments, and it can also lead to unwelcome attention from unions, or even organizing campaigns.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 327



About this Author

John S. Lord Jr., Foley Lardner, Arbitration Attorney, Litigation Lawyer,

Jack Lord is a partner and litigation lawyer with Foley & Lardner LLP. He focuses his practice on employment litigation and arbitration cases and has tried matters ranging from breach of contract, disability and national-origin discrimination claims to pregnancy and FMLA claims. He works with private and public employers in matters involving labor and employment law compliance. Mr. Lord regularly defends employers in class and collective action lawsuits. He has defended numerous entities that operate “public accommodations” against claims under Title III of the...