Home Care Workers: Overtime and Other Wage and Hour Laws

Home care workers provide essential services to some of society's most vulnerable members, yet they often face unique challenges over wage and hour regulations. Understanding these rules is vital for legal compliance and protecting workers' rights and livelihoods.

In recent years, the wage and hour laws applicable to home care workers have gotten increased attention. This is because of changes in federal regulations and heightened awareness of labor rights. The U.S. Department of Labor updated the Fair Labor Standards Act (FLSA) rules for home care workers in 2015. These rules govern minimum wage, overtime pay, and record-keeping requirements. They vary significantly depending on whether a person or an agency hires the caregiver.

This article covers the wage and hour requirements for home care workers under the FLSA, including exemptions for companionship services and live-in service workers. See FindLaw's Wage and Hour Laws section for more.

What Is a Domestic Service Worker?

According to the U.S. Department of Labor (DOL), domestic service workers include:

• Babysitters
• Caretakers
• Companions
• Cooks
• Family chauffeurs
• Home health aides
• Housekeepers
• Gardeners
• Maids
• Nannies
• Nurses
• Personal care aides

FLSA and Domestic Service Workers

The Fair Labor Standards Act (FLSA) is a federal law that gives most workers in the United States minimum wage and overtime pay protections. The FLSA applies to direct care workers and home care workers. The federal minimum wage is $7.25 an hour. Overtime pay is one and a half times (time and a half ) the regular rate of pay for overtime hours performed in a workweek. So, most home care workers must get paid the federal minimum wage and overtime pay.

Agencies must pay direct care workers at least the federal minimum wage and overtime pay. Home care workers employed only by the person they're helping or that person's family are also entitled to the federal minimum wage and federal overtime pay. But, if the worker is more of a companion, then FLSA requirements don't apply.

Some employers classify home care workers as independent contractors. Under the FLSA, most workers are employees and not independent contractors. If you control the worker's schedule and tasks, it's very difficult to claim the worker is an independent contractor. So, paying the worker as an employee and not an independent contractor is better.

Joint Employment

So, who handles paying the worker in line with federal employment law requirements?

If you hired the home care worker directly and no agency or state organization is involved, then you manage FLSA compliance.

The FLSA has a concept called joint employment. This means that a worker can have more than one employer. It also means that while home care workers have FLSA protections, multiple employers must ensure they meet the FLSA wage requirements.

If you and an agency jointly hire the worker, you can depend on the agency to follow the FLSA wage rules. But, if the agency doesn't follow the FLSA, you could be responsible for unpaid wages and overtime pay.

The Labor Department recommends that when selecting an agency to find a home care worker, you ask the people at the agency if they follow all state and federal labor laws. Also ask if they pay their workers at least the federal minimum wage and overtime.

Companionship Services Exemption

Under the Fair Labor Standards Act (FLSA), certain domestic service workers are exempt from minimum wage and overtime pay requirements. You don't have to pay the minimum wage or overtime to casual babysitters and workers who provide "companionship services."

What Is Companionship Service?

Companionship service means providing "fellowship and protection" for an older person or someone with an illness, disability, or injury who needs help with regular care. Fellowship includes social, physical, and mental activities. This could include reading, going to a movie, or playing card games. Fellowship could also include transportation to social events, walking, or playing music.

Protection involves helping in the home and accompanying the person outside their home to provide safety support. This includes help getting in and out of a vehicle, watching the person out in public, and calling for help if the person falls or has a medical emergency.

Providing companionship care could involve helping someone with activities such as dressing, bathing, preparing food, managing medication, and coordinating medical care. But, there are differences between companionship and home health aides. Companionship service is limited to 20% of total work hours per week. If the companion spends more than 20% of their work week providing care, they are entitled to minimum wage and overtime pay.

Household Work

"Companionship services" don't include domestic services for other household members. Work that helps other household members, such as doing laundry for other family members or preparing dinner for the entire family, means you can't claim the companionship exemption. In such situations, you must pay the employee minimum wage and overtime for that workweek.

Medically-Related Services

"Companionship services" don't include medical tasks that require training and medical personnel, such as certified nursing assistants. Direct care workers who perform medically related services are not included in the companionship services exemption.

Live-In Domestic Service Workers

Special rules apply to live-in domestic workers. Domestic service workers living in the employer's home are generally exempt from the FLSA's overtime pay rule.

Live-in domestic service workers permanently live on the employer's premises or stay there for extended periods of time.

A live-in worker may live, work, and sleep in the home for seven days a week and have no other home of their own. A worker is "live-in" help if they reside, work, and sleep on the premises five days a week or 120 hours or more.

For example, if a nanny works from 9 a.m. to 5 p.m. during the workweek and sleeps on the premises on four consecutive nights, then the worker is living on the premises for an extended period of time.

Live-in domestic workers are subject to the "companionship services" exemption.

Claiming Exemptions

Home care staffing agencies can't claim the exemption for companionship services or live-in domestic service workers. But you or your family may claim the exemptions.

State Law and Other Requirements

If you hire a home care worker, you may also be responsible under other laws, such as IRS requirements, Medicaid regulations, or state employment laws. For example, several states and some cities have passed laws that regulate how domestic service workers should get paid and treated. On top of setting minimum wage and overtime rates, the laws may also require meal breaks, sleep time, and workers' compensation. Where both laws apply, you must follow the law demanding a higher wage.

Learn More About Home Care Worker Laws

If you need more information on hiring a home care worker or if you're a home care worker and believe someone has violated your legal rights, contact an employment law attorney.