Under the FLSA (Fair Labor Standards Act) a registered nurse consultant who works from home, rarely interacts with supervisors, applies her employer’s clinical guidelines while analyzing medical services to determine medical necessity, lacks final decision authority given by her employer / insurer to medical directors for coverage denials, is still not owed overtime pay under the professional exemption of the FLSA for working more than 40 hours a week.

The case is Isett v. Aetna Life Insurance Company, 18-3271-cv. It was decided January 14, 2020 here in New York.

A nurse who works from home is not owed overtime pay for more than 40 hours per week under the professional exemption. Aetna Life Insurance Company successfully argues that its nurse consultants, regardless of how little authority they appear to have, or how little discretion or independent judgment they believe they have, are not entitled to overtime pay. Works from home nurse consultants are all registered nurses, licensed, and their decisions, regardless of how routine, require the use of their advanced knowledge in a field of science.

Physician medical directors are exempt from overtime pay although LPNs working as nurse associates are not. The nurses argue that they perform non-clinical work. Their works from home duties are non-clinical and therefore should be compensated as not exempt from the FLSA. The Court disagrees and looks to their primary job duties which are the focus of so many employment law cases.

Under the FLSA a “professional” is an employee whose primary job duty requires “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Registered nurses qualify as such.

Since 2018 the U.S. Supreme Court cautions that lower courts “have no license to give the [professional] exemption anything but a fair reading” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). The Secretary of Labor clarifies exemptions thru rule-making under the CFR [Code of Federal Regulations]. “Discretion and independent judgment” are explained in relation to an administrative exemption. In this case, the employer chooses to defend under the professional exemption. Under that exemption, much less discretion and independent judgment are necessary.

The nurses argue that under the administrative exemption they have no “authority to commit the employer in matters that have significant financial impact …. to waive or deviate from established policies and procedures without prior approval,” or “to negotiate and bind the company on significant matters” Pippins v. KPMG, LLP, 759 F.3d 235, 238 (2nd Cir. 2014).

However, employers may choose how to defend pay practices. In this matter Aetna chooses the professional exemption. The “discretion and judgment” needed by professionals with that exemption is less stringent than when an employer alleges that it is exempt from overtime pay under the administrative exemption. Once an employee uses his or her advanced knowledge or education in a field of science, where the employee’s position requires such education, the discretion or judgment is implicit within the position itself. The employee’s advanced knowledge or education, regardless of her or his actual authority, exempts them.

No regulations demand that nurses work in clinical settings. There is no evidence that the decisions made by works from home nurse consultants vary from those working in clinical settings. A future case may include expert testimony to differentiate the two. But each employment law case rests on its own facts. And until another potential professional exemption case comes along, a nurse consultant, works from home or in house, is exempt from overtime pay under the professional exemption.

It seems almost every day an employee asks what’s my case potentially worth. No employment lawyer, regardless of skill or experience, can provide a definite answer until the fact evidence is gathered. And then it’s an educated guess.

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