Request By:
Stephen N. Frazier
First Federal Building, Suite 202
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion as to whether nursing personnel are considered "professionals" and, therefore, exempt from the minimum wage law requirement of payment of overtime for hours worked over forty in any workweek.
You point out that hospitals sometimes work on an 80-hour basis every two weeks. Of course, this procedure is permissible under the federal minimum wage law, but that law does not preclude Kentucky from enforcing its own law, which does not contain the 80-hour work period for hospitals.
We enclose a copy of OAG 74-804 which discusses that aspect of your inquiry.
As to whether nurses meet the qualifications of "professional" and thus would be exempt from overtime payments, KRS 337.010(2)(a) excludes from the term "employe" "(ii) any individual employed in a bona fide . . . professional capacity . . . as such terms are defined by administrative regulations of the Commissioner [of Labor]; . . ."
Accordingly, the Commissioner of Labor has promulgated Administrative Regulation 803 KAR 1:070.
Section 3 defines "professional" as one whose primary duty involves:
(a) work requiring knowledge in an advanced type of a field of science acquired by a prolonged course of study in a specialty; excluding general academic education apprenticeship;
(b) whose work is creative and original in a recognized artistic field and whose results depend on the person's invention, imagination or talent; or
(c) teaching, tutoring or lecturing.
Further, the work must require constant exercise of discretion and judgment, be predominantly intellectual, and the employee must not donate more than 20% of the work hours to activities not attributable to the work described in subsections (1) to (3) and who is compensated on a salary or fee basis at not less that $170 per week, exclusive of board, lodging or other facilities. If the worker's salary is $250 per week, many of the other requirements are presumed met.
Most nurses meet all the requirements except the payment of salary. The average nurse is paid by the hour. A salaried person would be paid a weekly, monthly or other period of salary irrespective of the hours worked or not worked.
So, whether a nurse is a "professional" in order to forego overtime payment, she must meet the requirements of the aforesaid regulation. (We enclose a complete copy of 803 KAR 1:070). If she fails in any of the conjunctive requirements, then she cannot be classified as "professional" for overtime purposes.