Jottings By An Employer's Lawyer

Monday, March 27, 2006

Nurse Practitioners & PA's More Like Nurses than Doc's Under the FLSA

Nurse Practitioners and Physician's Assistants work under the supervision of doctors and in many cases serve as the primary provider of medical services, particularly in areas that are underserved by physicians. In almost all states, including Texas, they are able to prescribe medicine.

But the question facing the 5th Circuit was whether they were "practicing medicine" as that phrase is used in ยง 541.3(e) of the white collar regulations. It exempts certain professions from the normal requirement for white collar employees that they be paid on a salary basis in order to be exempt. The so called "salary basis exception" is applicable to:
An employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof.
Ultimately the case turned on the deference to be given to the DOL's interpretation and for anyone with a case dealing with administrative deference, today's decision is an important one. Belt v. Emcare, Inc. (5th Cir. 3/27/06) [pdf].

For Emcare it has more immediate significance since it was their practice of paying PA's and Nurse Practitioners on an hourly basis that brought the issue before the Court. The Court found the DOL's position was entitled to deference, and the DOL maintained the two jobs needed to be paid on a salaried basis in order to be exempt.

My short hand summary of the case -- for purposes of the professional exemption under the FLSA, at least in the 5th Circuit, treat Nurse Practitioners and PA's like registered nurses, not doctors.


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