NURSES NOT PAID TO BE ON CALL

The Employment Lawyers Group has filed a lawsuit against Adventist Hospital, otherwise known as San Joaquin Community Hospital. Nurses and surgical technicians are required to be on-call and come into the hospital on very short notice. The nurses and surgical technicians are either not paid minimum wage for being on-call and/or the hours they are on-call are not paid as overtime or double time if they already worked more than eight or twelve hours the day they are on-call. In addition, the on-call hours are not counted towards daily or weekly overtime or double time.

California employees must be paid at least minimum wage for each hour they are on-call. Adventist hospital knows this because they pay some of the potential class members more than minimum wage to be on-call. In addition, Dignity Healthcare (another hospital in Bakersfield) pays their surgical technicians and registered nurses well above minimum wage to be on-call. Many hospitals in California pay their on-call nurses and surgical technicians minimum wage or more to be on-call. It is an unfair business practice and a violation of California labor laws to pay less than minimum wage for those hours an employee sits waiting to be called into work.

Adventist Health has a history of requiring its employees to sign binding arbitration agreements. San Joaquin Community Hospital has been part of Adventist since at least 2003. It is possible the claims of the employees subject to Adventist's on-call policy may not be capable of being maintained as a class action lawsuit. Class action lawsuits are lawsuits in which one or more employees represent the same interests of their coworkers. When employees sign binding arbitration agreements they have to arbitrate their claims. The law assumes there is an automatic waiver of one's rights to have a class action if they sign an arbitration agreement.

The Employment Lawyers Group is continuing to investigate the on-call case against Adventist Hospital. Call (661) 412-9600 if you have any information concerning the requirement that the nurses and surgical technicians at an Adventist Health Hospital were required to be on-call.

ADVENTIST HEALTH SOUTHERN CALIFORNIA MEDICAL FOUNDATION

The potential lawsuit against Adventist Health, filed as a class action also asks for Private Attorney General Penalties. Private Attorney General Penalties (PAGA) can be brought on a group basis without each individual employee joining the lawsuit. PAGA penalties are not waived if an employee signs an arbitration agreement. Private Attorney General Penalties are penalties normally only the Labor Board could obtain. However, a 2004 law allows private practice lawyers to bring actions for these penalties on behalf of their clients and others similarly effected. Presently, the Employment Lawyers Group is investigating whether Adventist Health made their nurses and surgical technicians sign binding arbitration agreements which prevent them from having a class action lawsuit.

Class actions lawsuits are important because employees are often afraid of retaliation. While we have spoken to considerably more than the two nurses who filed the lawsuit against Adventist, many employees are fearful of suing. If they signed a binding arbitration agreement and they do not sue they will not receive actual compensation at minimum wage or their normal hourly rates for working on-call. Nor will hours otherwise worked, and their on-call hours have a chance of being paid at overtime and double time rates due to the on-call hours. Employees who sign binding arbitration agreements have to file arbitration action on their individual basis in order to recover non-PAGA penalties.

Employees not directly in the lawsuit against Adventist Health may be able to recover 25% of any PAGA penalties obtained. PAGA penalties are penalties the Department of Labor Standards Enforcement would normally collect. PAGA settlements require that 75% of the recovered penalties go to the DLSE. The statute of limitations for a PAGA action is considerably shorter than the statute of limitations for unpaid wages.

CONTACT OUR LABOR LAWYERS
AT (661) 412-9600 IF YOU HAVE ANY QUESTIONS ABOUT ARBITRATION, PAGA PENALTIES, OR BRINGING A CASE FOR UNPAID WAGES

SAN JOAQUIN COMMUNITY HOSPITAL

Nurses and surgical technicians of San Joaquin Community Hospital are subject to Adventist Health's on-call policy. The on-call policy requires these workers to report to work within such a short period they are on restricted on-call. Employees in surgery are required to respond within 20 minutes of a hospital surgery request. Employees in cardiopulmonary, S.O.S. imaging, pharmacy R.N., social workers, PACU, GI Lab, Cardiac, cath lab are required to respond within 30 minutes. Employees in the birth center, medical surgery ICU, dieticians, and plant are required to respond within 60 minutes.

California law requires nonexempt employees such as those subject to the on-call policy, at San Joaquin Community Hospital, to be paid at least minimum wage for the hours they spend waiting to be called into work. If the requirement of being on-call is mandatory, the response time is very short, and it is impermissible to trade a single assignment while on an on-call rotation the time spent on-call should be paid at least minimum wage. In cases the Employment Lawyers Group has handled, the inability to drink while on-call has proven to be an important factor in how limiting on-call is. Obviously hospital level employees cannot report to work under the influence, nor could they drive into work while intoxicated.

Because the hospital employees subject to the on-call policy earn a wage often four times or more than minimum wage, the lawsuit that was filed argues the employees subject to this policy should be paid their regular hourly rates for being on-call. In other words, $6.55 an hour is an illegal rate to pay an employee to be on-call. San Joaquin Community Hospital workers paid $14.00 an hour should be paid more than that for being on-call because a nurse could earn well more than $30.00 an hour working elsewhere when they were on restricted on-call.

PAY STUB ERRORS

California Labor Code Section 226 allows employees who receive incorrect paystubs to receive a $100 fine for each incorrect paystub, up to $4,000. The statute of limitations to collect paystub error fines is very limited. The lawsuit against Adventist Hospital and San Joaquin Community Hospital alleges paystub violations. California Labor Code Section 226 violations may exist against Adventist Health and San Joaquin Community Hospital because the paystubs:

1. Fail to indicate the correct number of hours worked on each paystub when employees are on-call because restricted on-call hours were not counted towards overtime and double time hours
2. The rates of pay on the paystubs are wrong. On-Call time was not paid at minimum wage. Nor was it paid at overtime or double time rates if appropriate due to the number of hours worked on a particular day, or during a particular week.
3. The names on the paychecks as to who the employer is creates liability. Adventist Health is listed, but there is not a legal entity with that name. Nor is a corporate address given which might assist in determining which Adventist Health corporation the employer is. An employer's address is required, but Adventist Health fails to provide one. San Joaquin Community Hospital with the address of the employer is also listed. It is thereby unclear who the employer is.