In Wendy Elwell's case, she never disputed she was a professional worker. But Matia ruled that she was entitled to overtime because University Hospitals' home-care agency paid her on an hourly basis for part of her work rather than exclusively on a fee basis, as the exemption requires. He also found that her services were not unique, a requirement linked to fee payments. The hospital said it disagreed with the court's decision but wouldn't comment further because the case is on appeal. Despite the victory, Elwell's lawyer, Elizabeth Zink Pearson of Covington, Ky., sees problems the Labor Department has yet to address.
Inconsistencies also crop up.
In Elwell's case, for example, the judge referred to a Labor Department opinion when he found that her services were not unique, in the way an artist's might be. Yet in another case, involving five registered nurses with duties similar to Elwell's who sued Cleveland Clinic Foundation Heath Care Ventures Inc., the nurses lost their overtime request. In that case, the courts referred to a different Labor Department opinion in declaring that the nurses did provide unique services, like a singer who sings the same song time and again. The GAO has called for a comprehensive review and for the Labor Department to make any needed adjustments while balancing the competing interests of employers and workers. But by the Labor Department's own account, quick change is unlikely.