The U.S. Department of Labor is becoming more aggressive in its enforcement of the Fair Labor Standards Act and this aggressiveness is nowhere better exemplified than in the health care industry, where compliance issues abound. The agency has just sued a health care agency in Pennsylvania, alleging that home care workers were not paid overtime and the minimum wage. The case is entitled Walsh, Secretary of Labor et al. v. Wicare Home Care Agency LLC et al. and was filed in federal court in the Middle District of Pennsylvania.

The Complaint asserts that “Hernandez is responsible for creating and implementing policies that kept employees from being paid the legally required overtime rates, and in some instances, the minimum wage.” The employer, it seems, implemented an employment contract for home health workers that required them to give up their right to proper overtime.

The Complaint alleges that the “defendants failed to pay their in-home caregivers the overtime premium of one and one-half times the regular rate, regardless of the number of hours worked, even though some of [defendants’] employees routinely worked more than 40 hours in a workweek.” There were weeks in which many employees worked overtime, with some working 70, 80 or even 100 hours in a single week. The Complaint asserts that the “defendants either paid employees their straight time rates for those overtime hours, or in some cases, paid nothing for overtime hours worked.”

The agency asserts these actions were deliberate or the Company acted with a reckless disregard of the legal obligation to pay proper overtime. The Complaint further asserts that the “defendants’ attempts to contract their way out of their overtime obligations shows that they were aware of their obligations under the FLSA.”

The Takeaway

An employer cannot, by contract, have its employees waive their rights to overtime. That contract is void as against public policy. The employer can try to keep his employees working no more than forty hours or, if overtime expenses are a problem, the employer can lower the wage rates of the workers so that overtime costs are not as onerous.

Simple as that.