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Is it legal for an employer to pay me at different rates, because I am working as a CNA and as a LPN?

Wednesday August 22, 2012
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Dear Nancy,

I have been working as a CNA at a long-term care facility for the past five years. I recently graduated with my LPN and will be staying at the same facility, working part time as a CNA and part time as an LPN. My employer is giving me a wage increase, but only for the two days a week I work as an LPN. The other three days I will continue to make my CNA wage. Because I am held liable for my license at all times, no matter what duties I am performing, is this legal?


Nancy Brent replies:

Dear Warren,

You have characterized the dilemma of working in one role some of the time and another role for other times when one of the roles requires a higher level of functioning and a higher level of responsibility. It is not easy to make decisions on how you provide patient care when you are an LPN and a CNA. You are correct when you state your license is always there, so how do you separate the two roles?

Although it may be legal to pay you different wages based on what your role is on a particular day, your standard of practice and standard of care may always be those of an LPN, because of your education and training. It may be, in order to save money, your employer is attempting to use your LPN services every day, but pay you only as a CNA on the days you have that role.

You may want to consult with a nurse attorney or attorney who works with nurses to give you a specific opinion as to the "do-ability" of performing these two roles. His or her opinion would be based on your respective job descriptions, the LPN practice act and rules and other issues, such as staffing and supervision in the facility.

The fact that you are asking about this issue supports your well-founded concern for the dual roles you undertake, not in terms of pay, but in terms of the provision of nursing care to residents and possible resulting liability.


Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.