Health Care Client Alert: Private Duty Nursing, Windshield Time, and Wage and Hour Issues: The Russian Roulette No Employer Wants to Play

For health care providers offering private duty nursing services, reimbursement can be a tricky maze. Reimbursement is generally made on a time-based methodology and individuals providing care to patients or clients are paid when they are providing such direct services. By providing care in clients’ homes, direct care employees spend a substantial amount of time travelling in between each episode of care delivery. Under the Fair Labor Standards Act of 1938, as amended, U.S.C. §201 et seq (FLSA), employers employing such direct care employees are required to pay these employees for their drive time—or windshield time— between their client visits. Many employers have operated under the premise that in addition to basing compensation on the direct care time, simply paying for mileage for the time in between was sufficient. However recent litigation has shed light on this practice as insufficient and a violation of the FLSA. While most employers are open to payment of back wages to remedy their improper practice, many also do not realize the teeth with which FLSA violations can bite.

The United States Department of Labor enforces the FLSA through its Wage and Hour Division (DOL). Employers found in violation of wage and hour laws face a series of penalties which may include the following:

1. First, referred to as “back pay”, the DOL will require the employer to pay the employee the difference between what they were paid and what they should have been paid over a two-year lookback period. The statute of limitations increases to three years for willful violations. Moreover, because the amount of additional worked time can be substantial, this calculation may then also implicate overtime pay.
2. Second, the DOL may also charge the employer with liquidated damages as a penalty. This amount can be equal to the total amount of back pay for all employees affected by the violation.
3. Third, employees may file a private lawsuit to recover this back pay and then receive as an award their attorney’s fees and court costs from the employer.
4. Fourth, and indirectly, additional W-2 pay also means additional employer tax liability.

For private duty agencies, failure to pay their direct care workers properly subjects them to high stakes if they fail to pay those individuals for their windshield time. While the remedy may be steep, don’t delay in addressing this issue to prevent your agency from accruing additional fines and penalties. Brouse McDowell’s attorneys have a wide breadth of experience in health care and labor & employment issues. Please contact us to discuss your situation. As with most government enforcement, it is often better to self-correct before the respective agencies take their spin.