Recently, a potential client that owns a home care agency in Pennsylvania called our office to ask whether home care workers are owed overtime when they work more than forty (40) hours in any given week. The answer is usually yes, with a few exceptions.
When advising on this question, we look at the Fair Labor Standards Act (FLSA). The FSLA is a federal law that gives home care workers, and most workers in the United States, protection for minimum wage and overtime pay. The act states how and when employees must be paid overtime with specific exemptions and requirements for home care agency workers. This blog series will cover some of these exemptions and requirements. In our first post, we will look at home care workers or caregivers who are family members of the person that they are caring for.
Can a family member be a home care worker?
The first question to answer is: Can a I be a home care worker or caregiver for my family member?
The answer is YES! A family member can act as a home care worker or caregiver.
Very often, when someone receives home care services (the “Client”), they only trust another family member to be in their home to provide that care. This can usually can happen in one of two ways:
- The Client can hire the family member directly to provide home care services. In this situation, the Client is the employer and the home care worker is the employee.
- The Client can obtain home care services from a home care agency, which will employee their family member as a caregiver. In this case, the home care worker is still the employee, but the home care agency–not the Client–is the employer.
Whether the caregiver is employed as a direct hire or through a home care agency, whoever is managing the services is the employer. The employer must abide by the requirements and exemptions.
When are family home care workers entitled to overtime?
Under the FLSA, the family member providing care is entitled to minimum wage and overtime for all time within the employment relationship. However, time “within the familial relationship” or, in other words, doing regular family activities with the family member are not considered within the scope of the employment and therefore not subject to these requirements.
This includes time spent providing “natural supports”, spending family time, or other unpaid assistance like the example below. The Department of Labor also put out this fact sheet which includes examples and more information on natural supports.
Are there exemptions to paying a caregiver overtime?
There may be some limited exemptions to paying overtime when the Client is being serviced by a family member without a home care agency between them. This is called the companionship services exemption. In some limited cases, a Client is not required to pay their caregiver federal minimum wage and overtime, if that worker provides mostly fellowship and protection services. For example, the home care worker spends most of the time watching over the family member Client and keeping the Client company.
The important things to consider are:
- Whether the home care worker spends more than twenty percent (20%) of their time in any given week assisting with personal care.
- Whether the caregiver performs any medically related tasks, and
- Whether the home care employee performs any general household work for members of the household other than the Client, such as laundry or cooking.
If the answer to any of those is yes, then the caregiver is not providing mostly fellowship services and must be paid minimum wage and overtime. Remember, if the caregiver is employed by a home care agency and not the Client directly, they must also be paid minimum wage and overtime.
However, there are other exemptions in limited cases if the caregiver is employed by both the home care agency and the client that may apply as well as the “Live-In Exemption”. Those will be covered in an upcoming blog.
How is overtime determined?
To determine overtime pay, the Department of Labor will look at the plan of care or other written agreement describing the paid services. This document will show what time falls under the employment relationship and what time is considered part of the family relationship. Additionally, the employment relationship is limited to paid hours in the plan only if the family care provider is treated the same way any other worker would have been treated. Most importantly, the number of paid hours cannot be reduced simply because the provider is a family or household member of the family member needing care.
Still have questions?
Whether you are an employee or an employer, navigating the ins and outs of the FLSA can be difficult and complicated. Also, if are a Pennsylvania or New Jersey resident and you believe you are owed overtime and have not been paid by your employer, there are laws to protect you. Let our employment lawyers help! Our attorneys understand and have experience with various employment disputes, minimum wage, overtime, and the FLSA generally and as it pertains to home care providers and home care workers.
Contact us today for a free consultation!
