Caroline J. Berdzik, chair of the firm’s Employment and Labor, Health Care, and Long-Term Care groups, spoke with McKnight’s Long-Term Care News regarding an Ohio lawsuit in which a nurse claims her pay was docked for lunch breaks she often didn’t take while working at a nursing home.

The nurse is contracted and typically these 1099 workers are not considered employees. However, the court found that the “economic realities” test could not be used to dismiss the case.

Caroline explained that courts are “using additional standards to determine what constitutes an ‘employee,’” and that because the nurse’s daily work is dictated by healthcare managers, it would be unlikely for the nurse to be considered an independent contractor.

Further, she explained that this case is an example of potential liability risks for long-term care providers.

“Even with proper policies, sometimes employees work through entire meal periods or do not have uninterrupted meal breaks. An employee who is non-exempt must be relieved from their duties during an unpaid meal period,” Caroline said. “Auto-deduct meal period programs expose long-term care operators to liability because there are situations where employees will not be able to take those meal breaks in part or in full, and it is difficult for employers to keep track of those exceptions.”

Caroline concluded that “[w]ith increasing scrutiny by state and federal agencies and an uptick in collective action wage and hour litigation, it is critical for long-term care providers to have a wage and hour audit conducted by an attorney to help ensure compliance with the myriad of evolving wage and hour laws.”

READ THE FULL ARTICLE:

“Lunch break lawsuit underscores wage, hour and 1099 concerns for nursing homes,” McKnight’s Long-Term Care News, August 25, 2023

MORE ABOUT GOLDBERG SEGALLA’S CAROLINE J. BERDZIK:

Caroline J. Berdzik, chair of the firm’s Employment and Labor, Health Care, and Long-Term Care groups, devotes her practice to helping businesses, organizations, and management navigate the panoply of employment law issues, from proactive counseling through alternative dispute resolution and trial. She represents companies in diverse industries such as health care, transportation, retail, construction, insurance, and finance, as well as non-profit organizations and educational and religious institutions.