Gentiva Lawsuit
The Gentiva lawsuit asserts that Gentiva Health Services, Inc. has adopted a corporate policy of treating visiting nurses and other home health care providers as exempt from the overtime requirements of the Fair Labor and Standards Act. Gentiva pays nurses and other health care workers on a "per visit" basis for some work, an hourly rate for other work, and fails to pay anything at all for other hours worked. The Gentiva lawsuit alleges this hybrid compensation scheme does not meet with the requirements of state and federal wage and hour laws. Current or former Gentiva employees who were not paid for all hours worked may be eligible to participate in the Gentiva lawsuit.
The lawsuit, entitled Rindfleisch, et al. v. Gentiva Health Services, Inc., was filed against Gentiva on May 10, 2010, in the Eastern District of New York. Martin & Jones, along with our co-counsel firm Cohen Milstein Sellars & Toll, PLLC, have requested in the complaint and will request in a motion that the court certify the Gentiva lawsuit as a nationwide collective action with all similarly situated Gentiva employees potentially eligible to join the lawsuit as members. Gentiva employs some 30,000 health care workers nationwide.
A registered nurse performing professional nursing duties under some circumstances may qualify for the professional exemption provided he or she is paid on either a salary or a fee basis. "Fee basis" refers to the payment of an agreed sum for a single job which is unique regardless of the time required for its completion.
The applicable FLSA regulation permits payment on a fee basis where "...these payments in a sense resemble piece work payments with the important distinction that generally speaking, a fee payment is made for the kind of job which is unique rather than for a series of jobs which are repeated an indefinite number of times, and for which payment on an indentical basis is made over and over again. Moreover, payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis..."
Gentiva, however, uses time estimates to determine how much to pay for each type of visit. Gentiva usually allocates points depending upon the amount of time it estimates that the visit should last. Also, Gentiva uses an hourly rate for any tasks outside of the regular patient visits. The lawsuit alleges that this compensation practice is contrary to the requirements of the FLSA under a "fee basis" arrangement. Courts have held that hybrid compensation plans that combine "per visit" payments with hourly compensation violate overtime pay requirements.
Martin & Jones attorney Jill Hernandez, who worked for more than ten years as an wage and hour investigator with the U. S. Department of Labor, will be working with Christine Webber, a partner at Cohen Milstein Sellers & Toll PLLC, who has represented thousands of workers in wage and hour cases, and they are requesting that the court require Gentiva to pay its employees in compliance with federal and state law.
