Several healthcare staffing firms have been sued over claims of cutting travel nurse pay midassignment or just before beginning work. The lawsuits seek class action status; however, staffing firms are fighting back in court. In one case, motions were filed on Oct. 27 to prevent plaintiffs attorneys from contacting additional nurses.
The lawsuits claim the staffing firms used “bait-and-switch” tactics to lure nurses then presenting them with a “take-it-or-leave-it” demand to accept less pay, arguing nurses in many cases carried on with their assignments because they couldn’t afford not to. Leading the lawsuits against the staffing firms is Kansas City-based law firm Stueve Siegel Hanson. It had previously announced an investigation into travel nurse pay practices on March 13 of this year.
In the announcement, Stueve Siegel Hanson attorney Austin Moore said staffing firms are breaching their contracts. The announcement stated “contracts’ fine print can vary, but that when a staffing agency cancels a contract at the last minute or gives a nurse one or two days to consider a lower rate, the agency is often breaching a contract — agencies should shoulder the loss when hospitals request lower rates, not the nurses.”
Right now, the lawsuits are ongoing. There were filed in July and August.
George Reardon, an attorney with many years of involvement and leadership in the staffing industry, said it isn’t possible to opine on the merit of these lawsuits; however, staffing firms can take steps to guard themselves from such suits.
“Temporary employment presumes employment at will and customer-determined assignment lengths, but these principles can be compromised by the language used to recruit and onboard travel nurses,” Reardon said.
“Contract law and many state statutes ban knowing misrepresentation of jobs, and these lawsuits prove the need for staffing firms to be extremely careful about the wording of representations and contracts with customers and assigned staff,” he said. “Staffing firms should disclose uncertainties about assignment lengths and rates and should disclaim candidates’ unsustainable expectations and economic reliance on perceived promises. Changing circumstances do not constitute ‘bait and switch,’ but they should be anticipated and explained to avoid employee misunderstanding. Staffing firms should also consider having customers share the risks of changing circumstances.”
The pay cuts come as Covid funds dry up, Kaiser Health News reported.
Firms facing these lawsuits include Aya Healthcare, Cross Country Healthcare Inc., Maxim Healthcare Services and NuWest.
Cross Country and Maxim Healthcare said they are not commenting on pending litigation.
“Maxim has partnered with healthcare providers for more than three decades and has a well-established track record of supporting and connecting healthcare professionals to work that matters,” Maxim said in a statement.
In recent court filings, several staffing firms have cited contract wording that requires individual arbitration in responses and asked that the cases be dismissed.
The suits describe similar circumstances among nurses.
In one suit, a nurse from Oklahoma traveled to a hospital in Chico, California, for an assignment. The contract offered base pay of $125 per hour with a minimum of 60 hours per week. Eight days into the assignment, the lawsuit says the nurse was informed that base pay was being reduced to $102.
In another example, a nurse from New Mexico accepted an assignment in Omaha, Nebraska, for an hourly pay rate of $108.50 with a minimum of 48 scheduled hours, according to court documents. However, the company allegedly lowered the pay six days before the assignment began to $82.50 per hour and reduced guaranteed weekly hours to 36.
In the latter example, the difference between the value of the original agreement and the value of the unilateral pay reduction was more than $25,000, according to the lawsuit.
One lawsuit also cited an instance where a nurse questioned a hospital representative who said the hospital never decreased the bill rate.
Another issue brought up was overtime pay with lawsuits saying the overtime pay rate calculation should have also accounted for stipends for such things as daily meals, incidentals and housing.
In motions to dismiss the lawsuits, several of the firms cited their contracts signed by nurses agreeing to individual arbitration instead of class actions, according to court documents. One response filed by a staffing firm also noted the “at will” nature of the employment allows for agreements to be modified.
In a motion to dismiss, NuWest argued the named plaintiffs lacked standing to sue outside of California and Montana, where they worked. It also argued one named plaintiff hadn’t yet exhausted administrative remedies in California, as required for Private Attorney General Act allegations in that state.
“In their Seventh Cause of Action, plaintiffs allege that NuWest violated 44 separate states’ wage-and-hour statutes,” according to a court filing. “Likewise, plaintiffs’ Eleventh Cause of Action alleges that NuWest violated 30 separate states’ overtime statutes. However, the complaint alleges the named plaintiffs only worked for NuWest in California and Montana.”
Case numbers for the lawsuits are 3:22-cv-1151; 2:22-cv-01117; 9:22-cv-81137; and 1:22-cv-01782.
