Abstract
This article focuses on the legal considerations that provide opportunities and restrictions in restructuring and changing employee compensation in a home health agency. With the revolution underway in home care reimbursement, agencies are finding their current compensation structures often do not meet their need to control costs and achieve productivity measured in ways other than a large number of visits in a short period of time.
Get full access to this article
View all access options for this article.
References
1.
1. In the only court decision to address the issue to date, in December 1998, the United States District Court for the Northern District of Ohio held that registered nurses who were paid on a per visit basis were exempt from minimum wage and overtime pay requirements of the federal Fair Labor Standards Act. Fazekas v. Cleveland Clinic Health Care Ventures, Inc. , 29 F. Supp. 2d 839 (N. Dist. Ohio 1998) At the time this article was written, however, (April 1999), that decision had been appealed to the United States Court of Appeals for the Sixth Circuit and a final decision had not yet been rendered.
2.
2. 29 USC §201 et seq.
3.
3. "Salary basis" has a specific meaning under the FLSA. Subject to certain specific exceptions contained in the FLSA regula tions, the salary may not be reduced because of variations in the quality or quantity of work performed. Subject to certain exceptions, the employee must receive his or her full salary for any workweek in which he or she performs any work without regard to the number of days or the number of hours worked (unless he or she performs no work during the work-week). Generally, reduction of the salary is permissible only for absences of a day or more (not of less than a day) for the employee's personal reasons or sickness or disability. 29 CFR §541.118
4.
4. "Fee basis" also has a specific meaning under the FLSA. Very generally, it refers to the payment of an agreed sum for the completion of a single job, which is unique and regardless of the time required for its completion. 29 CFR §541.313
5.
5. Regulations under the FLSA establish the requirements that must be met before the companionship services exemption applies, 29 CFR §552.1 - 552.110. Not all the five elements required as enforcement policy are clearly required by the regulations.
6.
6. When an existing workweek is changed certain rules must be followed to avoid the employees losing overtime pay for the workweeks in which the change occurs. Basically, the change must be intended to be permanent rather than temporary and when the change-over occurs, the employee is entitled to any overtime earned under the old workweek or under the new workweek.
7.
7. State law also should be checked. Many states establish requirements concerning when paydays must occur.
8.
8. If an employee is paged so often while on call that he or she cannot reasonably pursue his or her off-work life, the entire time in on-call status can constitute hours worked for which the employee must be paid at least minimum wage and which count as hours worked for overtime pay purposes.