Under the Fair Labor Standards Act a registered nurse consultant worked from home, rarely interacted with her supervisors, applied her employer’s clinical guidelines while analyzing medical services to determine medical necessity, lacked the final decision authority which her employer / insurer gave to medical directors for all coverage denials, but was still covered under the professional exemption of the FLSA and not entitled to overtime pay for working more than 40 hours a week.

The case is Isett v. Aetna Life Insurance Company, 18-3271-cv. It was decided January 14, 2020 here in New York.

A nurse was exempt from overtime pay under the professional exemption. Aetna Life Insurance Company successfully argued that its nurse consultants, regardless of how little authority they appeared to have, or how little discretion or independent judgment they believed they had, were not entitled to overtime pay. The work from home nurse consultants were all registered nurses, licensed, and their decisions, regardless of how routine, required the use of their advanced knowledge in a field of science.

Physician medical directors are exempt from overtime pay while LPNs who work as nurse associates are not. In this case against Aetna the nurses argued that their work was non-clinical. Since they performed job duties from home they should receive overtime compensation. The Court disagreed and focused on those nurses’ primary job duties.

Under the FLSA a “professional” is an employee whose primary job duty requires “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Registered nurses qualify as such.

In 2018 our U.S. Supreme Court directed that lower courts “have no license to give the [professional] exemption anything but a fair reading” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). The Secretary of Labor clarifies exemptions thru rule-making under the CFR [Code of Federal Regulations]. “Discretion and independent judgment” have been explained in relation to administrative exemptions but not to professional ones because, according to the Court, much less is required for them.

Had Aetna raised the administrative exemption instead of the professional one the nurses argued no “authority to commit the employer in matters that have significant financial impact …. to waive or deviate from established policies and procedures without prior approval,” or “to negotiate and bind the company on significant matters” Pippins v. KPMG, LLP, 759 F.3d 235, 238 (2nd Cir. 2014).

But Aetna chose to defend its pay practices under the professional exemption. The “discretion and judgment” needed by professionals is less stringent than that required when employers claim an administrative exemption from overtime. Once an employee uses their advanced knowledge or education in a field of science the discretion or judgment is apparently implicit in the advanced knowledge or education they have attained.

No regulations demand that nurses work in clinical settings. There was no evidence that the decisions made by nurse consultants varied from clinical settings to ones who worked from home.

Professional exemption from overtime is distinct from the administrative exemption.