FLSA Changes and the Healthcare Industry

LisaMN

[font size="1" color="#FF0000"]LAST EDITED ON 07-15-03 AT 03:48PM (CST)[/font][p]I've been reading about the proposed changes to the FLSA. Specifically the "learned professional" category. It seems to me the changes in the proposed test for this category would essentially make many of the positions staffed in healthcare organizations exempt. Has anyone else heard anything along these lines x:-/ ?

Another question, what exactly has to happen to this proposal before it becomes effective? I know there has been debate in the House and it will be debated in the Senate but my understanding is they do not have the ability to stop the changes.

Any input is appreciated......

Regards,
Lisa

awilliams

Lisa,

You pose an excellent question. I am going to see whether an editor of our Health Care Employment Law Letter will be able to shed some light on this issue.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

LisaMN

Thanks for the response Anne. I'm starting to think I'm reading too much into it. I posted the question on 2 BBs and have not received a single response.:-?

Tony Kessler

We asked Washington, D.C., attorney Hal Coxson -- who keeps close tabs on federal employment rules and regulations as they become law and who led our recent audio conference on the new proposed regulations for the Fair Labor Standards Act (FLSA) -- to take a look at your question. Here is his reply:
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Lisa:

The answer to your second question is that the business community is
fighting hard to preserve the Department of Labor's FLSA Part 541 rulemaking
from the attacks of organized labor and the trial lawyers on Capitol Hill.
When the public comment period closed, opponents of the new Part 541 rules
launched an all-out attack on the proposed regulations in Congress and the
media.

In many cases, opponents of the proposed Part 541 regulations grossly
mischaracterize the proposed changes as denying any overtime pay eligibility
to all workers who currently are entitled to receive overtime coverage,
including blue-collar union members and all first providers, such as police,
firefighters, nurses, and EMTs. Of course, that is untrue -- and completely
ignores the fact that the increased minimum salary level of $425/week in the
proposed regulations (up from the current $250/week) will actually greatly
increase the number of workers eligible for overtime. It also incorrectly
suggests that blue-collar workers performing manual labor, and even union
members under collective bargaining agreements, would now be exempt from
overtime pay under the "white collar" Part 541 exemption and no longer
entitled to receive overtime pay. That is simply false.

Last week we narrowly defeated a "rider" (amendment) to the FY 2004
Labor-HHS-Education Departments Appropriations Bill that would have
prevented the Department of Labor from spending any money to promulgate the
Part 541 regulations, in effect killing the proposed changes perhaps
forever. That amendment was defeated 213-210, mainly along party lines with
the Democrats voting to kill the proposed changes and Republicans voting to
continue the rulemaking process. Currently, we are fighting the same battle
in the Senate on their FY 2004 Labor-HHS-Education Appropriations Bill. The
Senate vote will be next week and at this writing appears to be very close.

If we survive the Senate vote, the Labor Department's rulemaking will be
allowed to proceed, with a final rule expected sometime near the end of the
year or early next year. More than 80,000 public comments were submitted before
the close of the comment period, so the Labor Department's review will take
awhile.

In answer to your second question relating to the "Learned Professional
Employee" category, while it is true that the proposed Part 541 changes to
the duties test under that classification will open up the exemption to
additional professional employees, I would not agree that it will make all
or even most of the positions in the health care industry exempt. By
eliminating the current requirement for the "consistent exercise of
discretion and responsibility" and by providing the exemption to those
professionals who have acquired the equivalent of an advanced degree "by
alternative means such as an equivalent combination of intellectual
instruction and work experience," the proposed changes clarify several of
the problem areas under the current regulations, which have led to confusion,
misclassification, and litigation (parenthetically, I suppose that is why
the trial lawyers are opposed to the changes, since the clarifications would
reduce the number of unintentional misclassifications and the resulting
collective action lawsuits and damage awards the lawyers are so fond of).
The proposed changes now focus on the knowledge of the employee and how that
knowledge is used in everyday work, not on the educational path by which
that knowledge was acquired.

But do not forget that the current Part 541 regulations already exempt many
professional employees in the health care field, including registered or
certified medical technologists, registered nurses, dental hygienists, and
physician assistants. So the notion that the proposed changes will somehow
open the floodgates to all or most exempt health care workers who are not
currently exempt, I think is a bit of an overstatement.

I hope these answers have been responsive to your questions. Please contact
me if I can be of any further assistance.

Hal Coxson
Ogletree, Deakins, Nash, Smoak & Stewart, PC
Washington, DC
(202) 887-0855 (tel.)
(202) 887-0866 (fax)
[email]hal.coxson@ogletreedeakins.com[/email]

LisaMN

Thanks for the input. Its great to have access to such great resources.x:-)

Regards,
Lisa

HR in Okla

I appreciate the information also. One concern we have had is on LPNs, but few of ours would meet the salary threshold.