All caregivers are owed the federal minimum wage of $7.25 an hour and an overtime payment for all hours worked over 40 in any work week, unless some very specific exemptions are met.
However, many agencies or individuals are not following the law.
This law firm has a lawsuit against PALCO, Inc. for back wage payments. If your payments from PALCO have ever been delayed or denied, or you are working more than 40 hours in any work week, please give us a call at 501-891-6000 or text us at 501-214-5934.
What hours can I be paid for?
You can be paid for the time you are working an as an employee. The law requires payment for all time when the worker is providing services or is required to be available to provide services. For example, if as a home care worker you are cooking or helping your client get dressed, that time must be paid for, and is considered “hours worked.” Or if the client is napping and the you must be available whenever they wake up, your time time is hours worked, even if you spend that time watching TV.
For more information on how to determine what time is “hours worked” that must be paid under the FLSA, see Wage and Hour Division’s Fact Sheet #79D, Hours Worked Applicable to Domestic Service Employment Under the FLSA. www.dol.gov/whd/homecare/factsheets.htm
Are there exemptions?
“Live-in” home care workers
They are entitled to receive at least the federal minimum wage for all their hours worked, but are not required to receive overtime pay. This is called the “live-in domestic service employee exemption.” Only consumers and their families and households may claim the live-in domestic service employee exemption. Agencies or other outside employers of live-in workers must always pay overtime.
If a family (or household) member of the consumer is paid to provide home care services, whoever is managing the services is the family member’s employer. For example, the consumer and a home care agency could jointly employ the consumer’s son or father. In those circumstances, family members must receive the minimum wage and overtime pay for all time that is within the employment relationship.
Companionship service 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. This is called the “companionship services exemption.” Any employer (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.
The companionship services exemption is narrow. It only applies if: a 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.
If someone truly self-direct your services, they are likely the home care worker’s employer and they must comply with the FLSA. (There may be another employer as well, such as a state agency or non-profit organization that participates in arranging the services. This is another example of “joint employment.”)
Should I hire an attorney?
Yes. Chris Burks is an experienced employment attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the caretaker laws well and will not stop fighting for your rights.