Hospitals, nursing homes and other health care providers often do not pay employees overtime under the "8 and 80" rule that can apply to health care employees. Some health care employers, however, apply the "8 and 80" when it is unlawful to do so. The result is that affected employees are entitled to back pay for the unpaid overtime premium.
Federal wage and hour laws generally require an employer to pay an overtime premium to an employee for work in excess of 40 during a workweek. There is, however, an "8 and 80" exception that can apply in very limited circumstances to certain health care employees. If all of the requirements of the "8 and 80" rule are satisfied, an employer can pay an employee straight time for 80 hours worked during a two-week period, even if the employee worked more than 40 hours during one of the two weeks. Absent the "8 and 80" rule, the general rule would apply so that the employee would be entitled to time and a half for hours worked in excess of 40 during any workweek.
The "8 and 80" rule, however, applies strictly under specific conditions. First, only certain health care providers, such as hospitals and other in-patient facilities, are allowed to use it. Second, the employer must expressly inform the employee that the employer will use the "8 and 80" method of pay, and the employer must utilize it consistently, not just during weeks the employer can comply with its strict requirements. Third, the "8 and 80" rule only applies to 8 hour work shifts and to 80 hours during a two-week period. Thus, if the employee works any 12 hour shifts, or double-shifts of 16 hours during any day of the workweek, the "8 and 80" exception to overtime does not apply, and the employee is entitled to time and half for all hours over 40 during that workweek. Also, even if the "8 and 80" rule applies, the employee is entitled to the time and half overtime premium for all hours in excess of 80 during the two-week period.
