Do you employ someone to provide in-home care to you or another family member? If so, you need to take heed of the complicated wage and hour requirements of the federal Fair Labor Standards Act (FSLA).
The FLSA is a federal law that gives most workers minimum wage and overtime pay protections. The U.S. Department of Labor recently updated the FLSA rules about home care workers. Under the new rules, most home care workers must now be paid at least the federal minimum wage, and overtime pay.
The Department of Labor has published a guide for consumers and families who are struggling to understand comply with their legal obligations regarding home care workers. These rules can be a nasty combination of complicated, confusing and obscure. This new guide should help a lot. It includes simple explanations and examples, advice and checklists to help consumers understand and keep track of their obligations.
If you are a senior or person with a disability, or family member, who directly hires a worker to provide in-home services and support: see the “Direct Hire Checklist” on page 42.
If you are an individual who has a home care worker living with you or who arranged for a home care worker to live with a family or household member who needs services: see the “Live-in Direct Hire Checklist” on page 42.
If you go to an agency to find a worker to provide in-home support for yourself or a member of your family or household, see the “Agency Checklist” on page 43.
If you are an individual who receives (or helps a member of your family or household arrange) in-home personal care or other services through a Medicaid-funded self-directed program: see the “Self-Directed Checklist” on page 43.
The booklet notes that home care workers are sometimes incorrectly classified as “independent contractors.” But most “home care workers are employees, NOT independent contractors.” It depends on the relationship between you and the worker, not the worker’s title (including if the worker is called an “independent provider”) or their status under other laws. [For more information on determining if someone is an independent contractor, see Department of Labor Fact Sheet #13: Am I an Employee?: Employment Relationship Under the Fair Labor Standards Act (FLSA). www.dol.gov/whd/regs/compliance/whdfs13.pdf.]
The booklet also explains the companionship services exemption.
In some limited circumstances, consumers and their families or households are not required to pay a home care worker federal minimum wage and overtime pay. If a home care worker provides mostly fellowship and protection, which means she spends most of her work time watching over the consumer and keeping the consumer company, then an exemption from the wage requirements might apply. We call this the “companionship services exemption.”
Any employer other than you (like an agency) must always pay federal minimum wage and overtime. If a home care worker is employed by an outside employer, such as a home care agency, then that employer is responsible for paying the worker at least the federal minimum wage and overtime pay even if you are not.
The companionship services exemption is narrow. You may use it only if:
Your home care worker spends no more than 20% of his or her total working time in a workweek assisting with personal care, such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.;
The worker does not perform any medically related tasks, which are tasks that are usually done by a nurse or certified nursing assistant, such as tube feeding or catheter care; or
The worker does not perform any general household work that is mostly for members of the household other than the consumer, such as doing laundry or cooking meals for the entire household. [Booklet at page 19]
The booklet also explores other murky areas such as: joint employment situations, the employment of family members as home care workers, live-in home care workers, overtime pay and record-keeping requirements.
This well-written guide should be a great help to any family that is utilizing home care services. Download it at http://www.dol.gov/whd/homecare/homecare_guide.pdf. And visit the Department of Labor’s website at www.dol.gov/homecare for even more information about how the FLSA applies to home care.[Note that minimum wage and overtime coverage for home care workers may also be subject to state laws that may differ from the federal rules.]
How Well Do Families Understand Updated Wage & Hour Rules for “Home Care”? By Katherine C. Pearson, Dickinson Law, Penn State.
Home Care Worker Rights in the States after the Federal Companionship Rules Change-2013, by National Employment Law Project