Overtime Requirements for Home Care Workers

For decades, persons providing “companionship services” to elderly people or others requiring daily assistance in living were exempted from federal law requiring overtime pay and the minimum wage when working more than 40 hours in a work week.  Because employers did not have to pay either the minimum wage or time and a half for overtime, these workers often became some of the most abused workers in the workforce.  Forced to do household chores, cooking, assisting with medical care and attending to daily personal needs for 80 hours and more a week became commonplace.  Thanks to recent changes to the Fair Labor Standards Act, many homecare workers are, as of January 1, 2015, entitled to overtime pay and all are entitled to be paid at least the minimum wage.

If a home care worker is employed by a third-party employer, he or she is automatically entitled to the FLSA’s protections of overtime pay and to the minimum wage.  Staffing agencies that provide home care aides or live-in domestic service employees can no longer claim that they are exempt from paying overtime and the minimum wage.  A third-party employer is a company or individual who employs the worker and is not the individual needing the home care or the family or household of that individual.  Importantly, even if a worker is employed jointly by the third-party employer and the individual, family or household, the third party employer may not claim that it is exempt from the FLSA.  The home care company must be otherwise subject to the FLSA.

If the individual, family or household employs the domestic worker directly, the worker is still entitled to minimum wage and overtime in any of the following circumstances:

  • If an employee hired by a family or the individual needing care spends more than 20% of his or her time assisting with the activities of daily living (such as dressing, grooming, feeding, bathing, toileting and transferring) and instrumental activities of daily living (such as meal preparation, driving, light housework, managing finances, assistance with taking medications and arranging for medical care), the employee must be paid minimum wage and overtime.
  • Even if the employee spends less than 20% of his or her time assisting with the activities of daily living, as set out in detail above, then the employee is entitled to be paid the minimum wage for all hours worked but not time and a half for overtime.
  • If the employee performs medically-related work typical of a nurse or nursing assistant during the workweek then the employee is entitled to overtime for that week for hours worked over 40 no matter the other rules. Toileting and assisting with the physical taking of medication does not generally count as medically related work.
  • If the employee does household work that primarily benefits other members of the household, such as making dinner for another member of the household or doing laundry for everyone in the household, then the employee is entitled to overtime for hours worked over 40 for that workweek no matter the other rules.

These changes to the FLSA result in most home care workers being entitled to be paid at least minimum wage and to receive time and a half overtime pay for hours worked over 40 in a workweek.  If you are a home care worker who has not been paid at least $7.25 for all of the hours you work and time and a half for all hours over 40, contact the overtime lawyers at Spencer Scott law firm.  In a free consultation, we can help you determine whether you have been entitled to overtime pay since January 1, 2015.