Good news about overtime may be on the horizon for home health workers in the United States. Currently, the Fair Labor Standards Act’s “companionship exemption” excludes overtime for home health workers, but several states provide overtime provisions, regardless. Additionally, a labor law change is under review as of December 2011 that would entitle nearly 1.8 million home care aides to overtime pay and a guaranteed minimum wage. Approval would remove from the FLSA a 36-year-old exemption for home care aides.
Home Health Care Workers Seek Overtime Pay
The FLSA governs the basic minimum wage, regular wage and overtime wages for American workers. Although most home health aides and workers already receive minimum or above-minimum wage, many do not receive overtime pay. The Supreme Court ruled against a home care aide, Evelyn Cook, regarding overtime pay, but the Labor Department is looking at the “companionship rule” for a potential update. Despite this, some states do allow for overtime for home health care workers. Read ahead for details.
Home health care advocates seek to change the “companionship rule” which excludes overtime for the “care, fellowship, and protection of persons who because of old age or physical or mental infirmity cannot care for themselves.” Services are defined as household work for aged or infirm persons, meal preparation, bed making, clothing washing and other similar personal services.
Companionship services does not include services performed by registered or practical nurses and other trained professionals. Also excluded from overtime are domestic service employees who reside in the household.
States Supporting Overtime for Home Health Aides
Are YOU a home health care worker or aide caring for a senior? There are over six million elderly people who require care, and often duties require long work hours.
Do you want overtime compensation for your long hours? Depending on where you live, YOU may be entitled to overtime. Right now, nurses, certified nurse aides, home health care aides and others providing home health care services may be entitled to overtime.
States that are friendly to the overtime concerns of home health workers include:
- California: Overtime rules include four categories of in-home care workers, as follows.
- Those who are employed by non-profits and do no additional work beyond feeding, dressing, and supervising the person do not receive overtime.
- Those who are employed by non-profits but do additional work beyond feeding, dressing, and supervising do receive overtime.
- For-profit workers receive overtime regardless of their job description.
- County-employed in-home care workers receive up to $11.50 an hour straight time per their union contracts and may also receive overtime under those contracts.
- Colorado: Overtime pay covers in-home care workers who are third-party-employed and work beyond this definition of “companion.” Specifically, workers who help bathe and dress the person, do any housekeeping, or remind the person to take medications are considered more than “companions.” They are defined as “personal care” attendants — who are entitled to overtime. Those employed by private households, however are exempt from overtime.
- District of Columbia: Overtime pay for companions as defined in the FLSA.
- Hawaii: Overtime pay coverage for companions as defined in the FLSA, but note the exemption for those employed directly by private households.
- Illinois: Overtime pay coverage for any person whose primary duty is to be a companion for aged or infirm individuals, or workers whose primary duty is to perform health care services in or about a private home. Note: These workers may fall under a general exemption for private household employers with fewer than four employees.
- Maine: Overtime coverage for all companions as defined in the FLSA with no exemptions.
- Maryland: Overtime pay coverage for all companions as defined in the FLSA.
- Massachusetts: Overtime coverage for all companions as defined in the FLSA with no exemptions. Under Massachusetts Minimum Fair Wage Law, home “companions” / caregivers of the elderly or infirm are not exempt and ARE entitled to overtime pay for all hours worked beyond 40 in a given week. In addition, caregivers and/or “companions” must be paid at least the state minimum wage for every hour worked.
- Michigan: Overtime coverage for companions as defined in the FLSA with an exemption for live-in workers employed solely by private household when the employer has less than two employees.
- Minnesota: Overtime coverage after 48 hours for all companions as defined in the FLSA Note: Overtime compensation is not required for companions who are available during nighttime hours but do not actually provide services.
- Montana: Overtime coverage for companions as defined in the FLSA, but with an exemption for those employed by private households.
- Nevada: Overtime coverage for companions as defined in the FLSA, but with an exemption for live-in workers. Also, an overtime exemption for businesses with less than $250,000 annually in gross sales.
- New Jersey: Overtime coverage for all companions as defined in the FLSA with no exemptions.
- New York: Overtime coverage is required for all companions; however, third party agencies pay overtime at 150% of the minimum wage rather than the usual 150% of the regular rate of pay. Overtime coverage for live-in workers is earned after 44 hours weekly instead of the usual 40 hours, also at 150% of the minimum wage rather than the usual 150% of the regular rate of pay.
- Pennsylvania: Overtime coverage for companions as defined in the FLSA, but with an exemption for those employed by private households.
- Washington: Overtime coverage for most companions as defined in the FLSA, but with an exemption for live-in workers.
- Wisconsin: Overtime coverage for most companions as defined in the FLSA, but with an overtime exemption for those employed directly by private households as well as those employed by non-profit organizations.
If you live in one of these states, contact the Lore Law Firm! We can help you navigate the complexities of each state’s provisions.
Overtime Facts: States Rights for Home Health Workers
You can visit the U.S. Department of Labor link for details on states that offer minimum wage protections for home health workers, and these states may support overtime pay for home health aides.
Also, check out the US Department of Labor Fact sheet 25: the home health care industry under the FLSA.
Above all, know your rights! If you are entitled to overtime pay, we can help ensure you receive it. Contact us today!
