Understanding Wage Theft And The “8 And 80” Overtime System
Generally, an employer is required to pay overtime compensation for any hours worked in excess of 40 in a workweek. However, the federal Fair Labor Standards Act (“FLSA”) provides for an exception for certain health care establishments, which are permitted to use the Eight and Eighty Overtime System.
Specifically, the FLSA requires hospitals and residential care facilities on the “8 and 80” plan to pay employees, who work more than 8 hours in a day or 80 hours in a two-week period, one and a half times the employee’s “regular rate” of pay.
To Whom Does The “8 And 80” Exception Apply?
By its plain terms, the “8 and 80” exception applies only to “a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises.” There is also a statutory provision in federal law that provides this exemption “for hospital and residential care establishment employment.”
Does The FLSA Prohibit Employers From Abusing The “8 And 80” System?
Yes. According to case law established under Parth, et al. v. Pomona Valley Hospital, “Employers cannot lawfully avoid the FLSA’s overtime provisions ‘by setting an artificially low hourly rate upon which overtime pay is to be based and making up the additional compensation due to employees by other means.’ The FLSA also prohibits employers from adopting ‘split-day’ plans in which the employee’s hours are arbitrarily divided in such a way as to avoid overtime payments. Both types of plans work in a manner so that employees do not earn overtime compensation, regardless of how many hours they worked.”
Is Prior Agreement Required To Implement The 8 And 80 Overtime System?
Yes, healthcare employers must have a prior agreement or understanding with their employees before implementing the “8 and 80” exception. If there was no agreement, an employer must calculate overtime compensation based on the standard 40-hour workweek.
Can Employers Change The Overtime Calculation Each Week?
No. The FLSA requires employers to establish a fixed, permanent pay schedule. While an employer may permanently adjust work schedules for valid business reasons, changing overtime systems to avoid paying overtime violates federal law.
Does This Apply To Outpatient Facilities?
No. The “8 and 80” exception only applies to hospitals and residential care institutions where patients live on-site. Outpatient clinics, ambulatory surgical centers and non-residential medical offices do not qualify, meaning standard 40-hour overtime rules apply.
Why Partner With Our Attorneys At Edelson Lechtzin LLP?
We are a national class- action law firm dedicated to protecting worker rights, and our team has served as lead counsel in numerous high-stakes wage disputes against major healthcare systems. Our attorneys’ dedication to justice has led to over $1 billion in financial recoveries for clients facing employer misconduct.
Our founding attorneys, Marc H. Edelson and Eric Lechtzin, each bring nearly three decades of experience to every case. Whether in state or federal court, our legal team has the knowledge and resources necessary to challenge large corporate employers.
We handle all wage theft claims on a contingency fee basis. Our clients pay zero legal fees unless a recovery is secured.
Reach Out Today. Free Consultations.
If your employer has used the “8 and 80” system to deny paying you all overtime compensation to which you are entitled, please contact our law firm. Call 844-696-7492 to set up a free consultation to discuss your legal options.