Advocate hit with another home health care nurse class action, after settling similar case for $4.75 million

By Scott Holland | May 16, 2016

On the heels of a settlement announced in a similar class action brought by in-home physical therapists and other home-based health care workers, another group of home care nurses are also taking aim at Advocate Health, arguing the company owes them overtime pay after allegedly improperly claiming the nurses were exempt from certain federal and state wage laws.

On May 13, registered nurse Christy Vazquez filed a class action complaint in Chicago federal court on behalf of Advocate’s “infusion RNs” — people who worked as RNs providing “health care infusion and pediatric services to patients in their homes.”

Vazquez said Advocate violated the Fair Labor Standards Act and Illinois Minimum Wage Law. She argued employers can only exempt employees from requirements of both statues if they prove the worker’s duties fall under one of the exempt categories and also if “the employee is compensated on either a ‘salary’ basis or a ‘fee’ basis.” Putative class members, she reported, are paid on a hybrid hourly and per visit basis.

According to Vazquez, Advocate’s pay structure for infusion RNs includes $50 for each routine visit. Start of care, resumption of care and recertification visits are worth $79. All attempted visits are paid the nonbillable rate of $10.50 per attempt. Those figures are the result of Advocate’s estimate for the duration of each duty. In addition, certain tasks are paid at $31 per hour — things like “time spent in staff meetings, case conferences, continuing education training, and in-services.” Paid time off is figured at the same $31 per hour. On-call hours are worth $3.

However, Vazquez continued, infusion RNs earn nothing “for a multitude of other work tasks they are routinely required to perform outside of the time spent in patients’ homes, including but not limited to, completing documentation of patient visits (‘charting’), preparing for and scheduling visits, travel time between patients’ homes (under 30 minutes), coordinating care with patients, physicians, pharmacists and other medical care providers by email, fax, phone, voicemail, text and the Perfect Serve paging system, completing required reports and dropping off lab specimens and following up on lab work.”

Vazquez estimated at least 40 current and former infusion nurses who worked in such a capacity at any time in the past three years could be part of the class of additional plaintiffs she has asked the court to certify.

She also noted her claims “are virtually identical” to those a larger group of home health clinicians lobbied against Advocate, also in federal court in Chicago. In that case, Lukas vs. Advocate Health Care Network and Subsidiaries, the court “granted both final FLSA collective certification and Rule 23 class certification on their IMWL claims.”

Plaintiffs in both the Lukas and Vazquez class actions were represented by attorneys with the firm of Stephan Zouras, of Chicago.

In that case, filed in 2014, a group of physical and occupational therapists and home health care RNs also sued Advocate, similarly claiming the company had underpaid them because the health system similarly said they were exempt from the overtime provisions in the FLSA and IMWL.

According to federal court documents, Advocate agreed to pay $4.75 million, including attorney fees, to settle that lawsuit. Of that, the plaintiffs’ attorneys were scheduled to receive $1.43 million.

A federal judge granted preliminary approval of the Lukas settlement on March 17, federal court records indicated.

In addition to class certification and a jury trial, Vazquez wants the court to order Advocate to supply a roster of infusion RNs from the past three years; to pay compensatory damages of time and a half for all overtime hours, plus 2 percent interest; pay liquidated damages equal to the amount of unpaid overtime; and pay attorney fees.

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