Before 2015, home care workers were excluded from the federal minimum wage and overtime protections provided by the Fair Labor and Standards Act. They are now covered by these laws, but the nature of their work and the services they provide are unlike the traditional “9 to 5” hours under which many other employees operate.
Wage and hour division of the United States Department of Labor has a helpful guide that outlines exactly how home care workers are paid, exemptions for overtime, and how employers can properly follow the regulations set forth under FLSA. As an employer of a home care worker, it’s critical that these regulations are adhered to, as violating them is not only hurtful for your company but those who need in-home care benefit greatly from a stable workforce of home care workers.
If you are a home care worker, it’s pertinent to know your rights and when they are being violated, so let’s lay it out in layman’s terms by making important distinctions. At the end of this, if you still have questions about overtime and wage and hour law, contact a wage and hour lawyer in Ohio to help you determine if your rights are being violated or not.
Are You a Live-In Home Care Worker?
To be a live-in home care worker, you must live at the client’s house or spend at least 120 hours—or five consecutive days or nights—in the client’s home per week. This rule excludes home care workers who perform 24-hour shifts but do not spend 120 hours or five consecutive days or nights.
As a live-in home care worker, you still have rights to breaks, sleep, meals, and “off-duty” time. These off-duty hours are different than breaks in that they must be long enough for the worker to pursue personal enjoyment effectively. If you are only receiving a minimal amount of off-duty time and cannot effectively make use of your personal time, then talk with your employer or a Columbus wage and hour lawyer to rectify the situation.
Are You Employed Directly by the Client?
Working in home care, employees may be employed either directly by the client or through an agency. Although you still must be paid minimum wage for all hours worked, this is an important distinction to make as there are a couple of exemptions to overtime payment.
For example, if a home care worker is hired to provide live-in services directly by the client, then the employee is employed by the client only. While the home care worker is still entitled to minimum wage, the client may be exempt from paying overtime, as the value of the housing the employee receives may count toward the wages the client is required to pay.
If a home care worker is employed by an agency that assigns employees to clients, then only the agency is responsible for ensuring that the worker receives overtime pay. Only clients may use the live-in domestic service employee exemption.
Are You Paid Hourly or Daily?
Home care workers—usually employed directly by clients—can be paid a daily rate, as long as the calculated hourly wage still meets the $7.25/hour federal minimum. For example, if a home care worker was paid $50 a day, and works five hours a day for five days, then in that week, they are being paid $10/hour, meeting the minimum requirement. The next week, they may work a total of 40 hours while being paid $50 a day. In that work week, the calculated minimum wage is only $6.25/hour, and the employer must pay an additional $1/hour to reach the minimum wage.
Keeping track of days and hours worked is important to ensure accurate record keeping and minimum wage or overtime are being kept. In the case that you are not being paid correctly through your employer, whether it be hourly, daily, by client, or by agency, it’s important to have your own records and contact a wage and hour lawyer in Ohio to go over your case.