Home Care Workers: Overtime and Other Wage and Hour Laws
Those working in the homes of others, including live-in domestic service workers, are subject to unique wage and hour laws.
Most direct home care workers are entitled to be paid the federal minimum wage and overtime pay. Direct care workers employed by a home care agency — or an employer other than the person being assisted or that person's family or household — are entitled to be paid at least the federal minimum wage and overtime pay. Direct care workers employed only by the person being assisted or that person's family or household, may or may not be entitled to minimum wage and overtime pay, depending on job duties.
According to the Department of Labor, domestic service workers include:
- Home health aides
- Personal care aides
- Family chauffeurs
This article covers the basic wage and hour regulations for home care workers, including exemptions for companionship services and live-in service workers. See FindLaw's Wage and Hour Laws section for more articles.
Under the Fair Labor Standards Act (FLSA), certain domestic service workers are exempt from minimum wage and overtime provisions. Casual babysitters and domestic service workers employed to provide "companionship services" for an elderly person or a person with an illness, injury or disability aren't required to be paid the minimum wage or overtime pay if they meet certain requirements.
What Is Companionship Service?
Companionship service means providing “fellowship and protection" for the elderly or someone with an illness, disability, or injury, who needs assistance 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, going for walks, or playing music.
Protection involves assistance in the home and accompanying the person outside the home, to provide safety support. This includes help getting in and out of a vehicle, monitoring the assisted person out in public, and calling for help if the person falls or has a medical emergency.
Providing companionship care could involve assisting someone with the activities of daily living, including dressing, bathing, preparing food, managing medication, and coordinating medical care. However, there may be differences between companionship and home health aides. Companionship service is generally limited to 20% of total work hours per week. If the companion is spending more than 20% of their work week providing care, they are entitled to minimum wage and overtime pay.
Work That Isn't Companionship Services
Other types of home care services that are not considered companionship care may be included in minimum wage and overtime laws.
"Companionship services" doesn't include domestic services performed primarily for the benefit of other members of the household. Work that primarily benefits other members of the household, such as preparing dinner for the entire family or doing laundry for other family members, results in the exemption being lost. In such a situation, the employee is entitled to minimum wage and overtime for that work week.
"Companionship services" doesn't include performance of medical tasks which typically require training and are performed by medical personnel such as registered nurses, licensed practical nurses, or certified nursing assistants. Whether a task is medically related is based on whether the services typically require and are performed by trained personnel.
The determination isn't based on a worker's training or job title. Direct care workers who perform medically-related services are excluded from the companionship services exemption. The performance of medically related services results in the exemption being lost. In such a situation, the employee is entitled to minimum wage and overtime for that work week.
Live-In Domestic Service Workers
In general, domestic service workers who live in the employer's home are exempt from the FLSA's overtime pay restrictions. To be considered a live-in domestic service worker, the worker must permanently reside on the employer's premises, or for “extended periods of time."
A live-in worker may live, work, and sleep in the home for 7 days a week and have no other home of their own. A worker may also be considered “live-in" if they live, work, and sleep on the premises 5 days a week or 120 hours or more.
For example, if a nanny works from 9 to 5 during the work week and sleeps on the premises on 4 consecutive nights, then the worker would be considered to be living on the premises for an extended period of time.
Additionally, live-in domestic workers are subject to the "companionship services" exemption.
Claiming Minimum Wage Exemptions
Third-party employers of direct care workers, such as home care staffing agencies, aren't permitted to claim the exemption for companionship services or the exemption for live-in domestic service workers. Even if the employee is jointly employed by the third-party employer and the individual, family, or household using the services, the third party employer can't claim either exemption. Third-party employers must pay their workers the minimum wage and overtime pay. However, the individual, family, or household may claim any applicable exemption.
Learn More About Laws Pertaining to Home Care Workers from a Lawyer
If you're a home care worker and believe you have been denied overtime pay, you should first ask your employer about it to rule out an honest mistake. Otherwise, you may want to consider filing a claim. Get started today by getting in touch with an experienced employment attorney near you.
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