Judge Cites FLSA Rules: Order HHC to Pay Agency Nurse's OT

Judge Cites FLSA Rules
Order HHC to Pay Agency Nurse's OT

By RICHARD STEIER

The Health and Hospitals Corporation is required to pay overtime to a Nurse who was sent by referral agencies to Bellevue Hospital, despite its claim that it was not her employer and therefore not responsible for such payments, a Manhattan Supreme Court Justice has ruled.

Justice Jed S. Rakoff also concluded that the Nurse, Anetha Barfield, was entitled to damages as a result of HHC's violation of the Fair Labor Standards Act governing overtime pay for work exceeding 40 hours in a week. He asked Ms. Barfield's lawyer, Abdool Khalil Hassad, to submit a figure, with HHC permitted to make a counter-offer, before determining an appropriate amount.

HHC officials did not respond to a request for comment.

Wanted Agencies to Pay

There was no dispute that between October 30, 2003 and January 2005, Ms. Barfield had worked more than 40 hours a week on 16 different occasions at Bellevue while employed by several different nursing agencies.

HHC argued, however, that those agencies, rather than Bellevue, were responsible for paying Nurse Barfield overtime for the extra hours worked. Its attorneys also contended that she was not entitled to collect the money from the city hospital system because at least one of the referral agencies told her it would not pay her for overtime work and Bellevue had difficulty determining how much she worked because she signed in through multiple agencies.

Justice Rakoff ruled, however, that using the FLSA standards to determine who employed a particular worker, there was no question that HHC fit the description. He noted that during the period in question, she was employed exclusively at Bellevue and used the hospital's equipment to perform her duties, did work that was integral to its operation, and her responsibilities were the same regardless of which agency referred her for any given shift. Bellevue also set Ms. Barfield's working hours, and had the power to discontinue using her if there were any problems with her performance.

HHC's Eye on Continuity

He also cited HHC's own Operating Procedure governing referral agencies stating that they were expected "whenever possible to assign the same nurses for an extended period of time to the same hospitals in order to promote more continuity of care and to increase the productivity of the nurses and the value of their services."

In addition, the judge stated in his decision, "it is undisputed that Bellevue employees encouraged plaintiff to work shifts additional to those for which she had been scheduled in advance, and at least one of the Bellevue employees responsible for verifying the sign-in sheets acknowledged that, although she did not look for agency nurses who worked for more than one agency, she sometimes noticed that this occurred."

In addition to the still-to-be-determined damages, Justice Rakoff ordered HHC to pay Ms. Barfield all the overtime money to which she was entitled.