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 (as of January 1, 2015). 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.
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.
The Department of Labor has revised the definition of companionship services that are exempt from FLSA protection. The term "companionship services" means the provision of fellowship and protection for an elderly person or a person with an illness, injury or disability who requires assistance in caring for himself or herself. "Companionship services" also includes the provision of care, when the care is provided attendant to and in conjunction with the provision of fellowship and protection, and doesn't exceed 20 percent of the total hours worked per assisted person and per work week.
Fellowship and Protection
The provision of "fellowship" means to engage the assisted person in social, physical, and mental activities. These activities can include conversation, reading, games, and accompanying the assisted person on walks or on errands. The provision of "protection" means to be present with the assisted person in their home, to accompany the person when outside of the home, and otherwise monitor the assisted person's safety.
The provision of "care" means assisting the person with activities of daily living such as dressing, grooming, bathing, toileting, and feeding; and instrumental activities of daily living, or tasks that enable a person to live independently, such as meal preparation, driving, managing finances, assistance with taking medications, and arranging for medical care.
The companionship services exemption to minimum wage and overtime pay isn't applicable when the employee spends more than 20 percent of the work week performing care services. In such a week when the employee spends more than 20 percent of the work week providing care services, the employee is entitled to minimum wage and overtime pay.
Work That Isn't Companionship Services
"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.
Medically Related Services
"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
Domestic service workers who reside in the employer's home are exempt from the FLSA's overtime pay requirement.
To be a live-in domestic worker, a worker must reside on the employer's premises either "permanently" or for "extended periods of time." A worker resides on the employer's premises permanently when he or she lives, works, and sleeps on the employer's premises seven days per week and therefore doesn't have a home other than the one provided by the employer. A worker resides on the employer's premises for an extended period of time when he or she lives, works, and sleeps on the employer's premises for five days a week, or 120 hours or more.
A worker also resides on the employer's premises for an extended period of time if he or she spends less than 120 hours per week working and sleeping on the employer's premises but spends five consecutive days or nights residing on the premises.
Additionally, live-in domestic workers are subject to the "companionship services" exemption.
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.
Are You Owed Unpaid Overtime? Have an Attorney Review Your Claim for Free
If you are 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 with a free claim review by an employment attorney specializing in wage and hour issues.