Nearly $900K FLSA Backpay Award Warns Other Home Health Employers |

Nearly $900K FLSA Backpay Award Warns Other Home Health Employers

The U.S. Department of Labor’s Wage and Hour Division is warning other home health employers to clean up their pay and timekeeping practices in announcing its recovery of nearly $900,000 in back wages and damages from home care employer Advantage Home Care LLC and co-owners Dondra Nichols and Phillip Simons (Advantage). These and the long and ever-growing list of recoveries showother health industry employers the perils of failing to track and pay required overtime properly as required by the Fair Labor Standards Act (FLSA).

FLSA Rules

The FLSA requires that most employees in the U.S. be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 in a workweek. It also prohibits employers from firing or taking adverse action against employees for exercising their rights. Violating employers and their complicit owners and other leaders risk liability for actual backpay, interest, double damages and costs of enforcement through Labor Department or private enforcement actions.

Advantage’s Costly Lesson

Advantage Home Care LLC provides nurses and home health aides for in-home care services. It’s nearly $900,000 schooling resulted after a Wage and Hour Division investigation found that Advantage failed to pay 108 workers their required overtime rates for all hours worked over 40 in a workweek and did not maintain accurate records of hours worked. Advantage paid $438,277 in back wages and an equal amount in liquidated damages for committing these FLSA violations.

In its announcement of the award, the Division warned other home health employers to clean up their own wage and hour practices.

“Workers in the low-wage home care industry must stretch their wages as far as they can go to make ends meet, making Advantage Home Care’s wage theft especially harmful,” said Wage and Hour Division District Director Roberto Melendez in Richmond, Virginia. “We encourage other home care employers to evaluate their own pay practices to ensure they are in compliance with the law.”

The Advantage recovery tops thr $324,049 in back wages and liquidated damages that a federal judge ordered another home health provider, Destiny Healthcare Services Inc. and its owner to pay for wrongfully failing to pay required overtime to 159 workers last Fall in Su v. Destiny Healthcare Services, Inc,. Mirza Baig, Sonia Chalal.

Like the Advantage recovery, that judgement came after a Labor Department investigation determined owner Mirza Baig and administrator Sonia Chalal did not keep accurate records of hours worked and paid the affected workers straight-time wages for all hours worked. By doing so, the Westchester-based employers failed to pay overtime as required by the FLSA. The Labor Department obtained a consent order resolving all issues, including payment of $324,049 in back wages and liquidated damages, and an injunction for future compliance. The award included $162,024.69 in unpaid overtime compensation and the additional sum of $162,024.69 in liquidated damages,

Heightened Health Industry Employer Risk

Home health and other health industry employers should recognize that the Labor Department specifically scrutinizes the health industry for special FLSA oversight and enforcement, Given this targeted scrutiny, health industry employers should be particularly careful to avoid getting nailed for FLSA violations by the Labor Department or private litigants.

Among other things, employers should confirm the current defensibility of their current treatment of any workers as salaried and assess the risk of reclassification as non-exempt any employee the employer currently classifies as salaried. Employers also should confirm proper tracking and documentation of all required hours of work and other additional data necessary to comply with recordkeeping requirements of the FLSA.

Because of the high likelihood of some pre-existing misclassification of workers, underpayment of overtime or other violations, a health industry business also should consider conducting this analysis within the scope of attorney, client privilege, and under the guidance of an experienced licensed attorney.

For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Author of a multitude of highly regarded publications on HIPAA and other medical record and data privacy and scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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This entry was posted on Thursday, February 22nd, 2024 at 7:49 pm and is filed under Health Care. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.