Our homecare clients often ask us about wage payment and overtime for their caregiver employees. The first questions we ask are “how the worker is employed?” and “are they are live-in?” This answers to these two questions guides which Fair Labor and Standards Act (“FLSA”) homecare regulations must be followed. In this post, which is part of our series on the employment of caregivers and homecare workers, we will discuss the FLSA as it applies to live-in homecare workers. These are federal laws so they will generally be the same in Pennsylvania, New Jersey, and other states.
What is a live-in homecare worker?
A live-in homecare worker is a caregiver that lives in the same home as the person they are caring for (sometimes called the “consumer”). To be classified as “live in” the caregiver must live there full time, or spend at least 120 hours or five consecutive days or nights in the consumer’s home each week.
If the worker comes to the consumer’s home for 24-hour shifts but are not present for at least the 120 hours or five consecutive days they are not considered live-in workers.
A live-in worker can be, but is not always, a family member.
When is a live-in homecare worker entitled to overtime?
Under the FLSA, live-in homecare workers are entitled to receive at least minimum wage for all hours worked regardless of whether the consumer or homecare agency is the employer. However, if the live-in worker accrues overtime hours, then the employer matters.
If the employer is the consumer, known as a “direct hire”, the consumer can claim the “live-in domestic service employee exemption” and is not required to pay the caregiver any overtime.
However, if the employer is a homecare agency, that exemption does not apply. Homecare agencies must always pay overtime, it does not matter whether the employee is a live-in or not.
How is a schedule and overtime determined?
It is important to have an agreement regarding every caregiver’s schedule. The employer and employee should determine which hours will and which hours will not count as paid hours.
Work time can exclude times such as sleep time, meal breaks, and other times where the worker has purely personal time. There is wide latitude on developing these agreements, so long as they are reasonable given the facts of the situation. These agreements should be updated as necessary.
It is important for a homecare agency to be aware that if any of the agreed time off is interrupted by work for the consumer, the homecare worker must be paid for the time spent working. If the employer is a homecare agency and that time is in excess of 40 hours in the workweek, the homecare worker must be paid overtime. Overtime must be paid out at one and a half times the homecare workers salary.
For more information on live-in workers compensation, the Department of Labor has a fact sheet which includes further explanation as well as examples to highlight the different situations.
Still have questions? Contact us for a free consultation!
If you are a small business owner or homecare agency that is looking for an attorney to review your employee agreements, we can help. Our lawyers have tremendous experience with employment contracts, non-compete agreements, and other small business disputes and legal issues.
If you are a caregiver or homecare employee and believe that you have not been paid overtime correctly or are being underpaid for the hours you are working, give us a call and tell us about your situation. We have employment lawyers that will help you enforce your employee rights!
As always, do not hesitate to contact Kaminsky Law for a free consultation today at 215-876-0800 or fill out a contact form here!