Homecare Nurses Sue Gentiva

May 25, 2010, 1:00PM. By Brenda Craig

Washington, DCHome healthcare provider Gentiva has been hit with an overtime lawsuit alleging its compensation plan shortchanges its thousands of nurses and physiotherapists across the US. "It is an unusual pay scheme," says attorney Christine Webber, who filed the suit on behalf a group of nurses from North Carolina and New York State. "Certain activities are done on an hourly basis; other activities are on a fee basis, other activities they don't count at all."

Potential class members include the majority of Gentiva's current 30,000 workers as well as former employees. "It is potentially a very large group," says Webber, a partner with Cohen Milstein, Sellers & Toll in Washington DC.

The five lead plaintiffs in the suit say they often worked 50 to 55 hours a week due to the duties they were assigned. "They were updating medical charts, following up with doctors for confirmation of directions," says Webber. "But that is all work they were doing in the evening or on the weekend, and they were not paid for that."

Gentiva, one of the largest homecare providers in the country, is a publicly traded company that has been in business for almost forty years. Its staff provides postoperative care and services to millions of Americans every years.

"Perhaps the weak economy encourages employers to break or bend the law in a way they would not dare to in flusher times," says Webber. "Weak economy aside, there is also a nursing shortage in this country, and these are people doing important work."

Although Gentiva employees have been classified as exempt under the Fair Labor Standards Act, Webber believes the homecare providers duties or method of payment meets the criteria for that status.

"I think they are entitled to be paid for the time they work and that is all we are seeking," add Webber who has represented hundreds of clients in wage and hour disputes. "Weak economy or not, people recognized the need to pay employees for the time they work."

Gentiva has yet to respond to the suit, filed on May 10.

Webber says it is possible Gentiva accidently run afoul of the rules because of the unusual nature of the pay plan. "It is relatively unusual to try to pay people on a fee basis, and perhaps it is lack of experience in that area that lead them to the mistakes we think they have made in setting up this process," says Webber.

Christine Webber is a partner with the firm of Cohen, Milstein, Sellers and Toll and a member of the Civil Rights & Employment practice team. She is currently involved in a number of high profile class action employment suits and Fair Labor Standards Act cases, including Dukes v. Wal-Mart, involving allegations of sex discrimination for 1.6 million current and former female employees. She holds a bachelor's degree from Harvard University and a JD from the University of Michigan School of Law. Her work has returned seven- and eight-figure recoveries for a number of clients.