CNA Pay Lawsuits: Nursing Assistants Owed Unpaid Overtime?

Attorneys working with ClassAction.org are looking into whether class action lawsuits can be filed on behalf of certain certified nursing assistants (CNAs) who may have been illegally underpaid for overtime hours.

Specifically, they believe some employers, potentially including hospitals, nursing homes, or rehab clinics, may be failing to include shift differentials when calculating CNAs’ time-and-a-half overtime rates. Under federal and state labor laws, employees must be paid one-and-a-half times their regular rate, which includes all wages earned, for all hours in excess of 40 each week.

A class action lawsuit may be able to help CNAs get back any unpaid wages they may be owed.

Why Might Certified Nursing Assistants Be Owed Overtime?

A CNA salary may or may not include shift differentials, a type of premium pay often provided for working night shifts or other non-standard shifts. Though common in nursing and other fields with overnight work, shift differentials are not required under the federal Fair Labor Standards Act (FLSA). However, the law does require employers to pay workers one-and-a-half times their regular pay rate, including shift differentials, for overtime hours.

An employee’s regular pay rate is their average hourly rate for a specified pay period and includes all compensation they received for doing their job, with certain limited exceptions.

The Department of Labor provides the following example of how to calculate an employee’s regular pay rate and time-and-a-half overtime rate for a pay period in which they received a shift differential and a nondiscretionary bonus:

“A non-exempt employee is paid $15.00 per hour plus an evening shift differential of $1.00 per hour for all hours worked during an evening shift.  The employee worked 45 hours, 30 of which were during evening shifts, in a week.  The employee also earned a $100.00 bonus that week that was promised for helping to produce a special order for a customer two weeks earlier than previously scheduled.  The following is an example of how to compute overtime pay based on the employee’s regular rate:

•             $15 per hour x 45 hours = $675 (compensation for straight time at $15 hourly rate)
•             $1.00 x 30 hours = $30 (shift differential for the evening shifts)
•             $675 + $30 (shift differential) + $100 (bonus) = $805 (total compensation)
•             $805 ÷ 45 = $17.89 (regular rate)
•             $17.89 x .5 = $8.95 (half time premium pay rate)
•             $8.95 x 5 overtime hours = $44.75 (overtime pay due)
•             $805 + $44.75 = $849.75 (total due)”

According to the Department of Labor’s FLSA overtime calculator advisor, a worker’s overtime rate is determined based on their calculated regular hourly rate regardless of whether they are paid a salary, on a piece-rate basis, or on some other basis.

A worker’s pay rates, including shift differentials and overtime rates, should be included on their paystub.

Shift Differential Overtime Lawsuits

Several lawsuits have been filed against companies that allegedly violated labor laws by failing to include workers’ shift differentials in their overtime computation.

In one case filed in October 2020, a production staff worker for a sticker manufacturer said her employer offered shift differentials as an incentive for workers to take late-night and overnight shifts. Per the suit, although the plaintiff received a $1.70 shift differential for each hour she worked during the factories’ second or third shifts, her overtime rate was one-and-a-half times her hourly rate, not including the extra shift differential. The lawsuit alleged violations of the Fair Labor Standards Act and New York Labor Law.

Another lawsuit filed in August 2022 claimed a customer service representative was paid a base hourly rate of $10.80 and a $1.00-per-hour shift differential. Nevertheless, the plaintiff’s overtime rate was $16.20, or one-and-a-half times her base hourly rate, even for weeks during which she earned a shift differential, the lawsuit alleged. According to the suit, the plaintiff’s employer violated the FLSA by failing to include her $1.00 shift differential in her regular rate when calculating overtime pay.

How Could a CNA Pay Lawsuit Help?

If filed and successful, a lawsuit could help certified nursing assistants get back money they may have been underpaid due to shift differentials being left out of their overtime rate calculations. A lawsuit could also require the employer to change how it pays CNAs and ensure that its pay practices comply with the FLSA.

Importantly, the FLSA prohibits employers from retaliating against employees for exercising their rights, including by filing an overtime lawsuit.

What You Can Do

After you get in touch, an attorney or legal representative may reach out directly to ask you some questions and explain how you may be able to help get a lawsuit started. It costs nothing to fill out the form or speak with someone, and you’re not obligated to take legal action if you don’t want to.

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