The United States Department of Labor (DOL) has issued final rules extending minimum wage and overtime protections under the Fair Labor Standards Act (FLSA) to home care workers employed by third party employers. These regulations have been in the works for some time, and questions have circulated regarding how they operate and the impact they will have. We try to address some of the basic questions here.
What are the major changes in summary?
The DOL notes two primary changes in these regulations. First, the tasks that comprise "exempt" companionship services are more narrowly defined. Second, the exemptions for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services rather than a third party employer such as home health care agencies.
When do the new regulations take effect?
The new regulations take effect on January 1, 2015.
What happens on January 1, 2015?
If you employ, or jointly employ, a direct care worker, you are required to pay the employee minimum wage and overtime pursuant to the FLSA. Agencies and other third party employers may not claim the overtime exemption for live-in domestic service workers.
What is a direct care worker?
A direct care worker is someone who provides home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions.
Do I have to pay for breaks and meal times?
The FLSA provides that an employer is not obligated to pay certain breaks that meet specific standards. For example, an employer is not required to pay an employee for a meal break that lasts at least thirty (30) minutes and is completely free from work duties, as well as sleep time, personal time, and other similar breaks. However, fifteen minute breaks must be compensated. Employers should consult with a qualified attorney to ensure that the state does not impose additional obligations to pay certain break periods.
What if an employee works between different homes - do I pay for travel time?
While you are usually not required to pay for travel between the employee's home and workplace, an employer is obligated to pay an employee for travel between work locations once the employee has commenced working for the day.
What does "companionship services" mean?
The regulations define "companionship services" as providing fellowship and protection for an elderly person or persons with an illness, injury, or disability who requires assistance in caring for him or herself. The provision of care may be attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed twenty percent (20%) of the total hours worked per person per workweek.
What if I do not have employees because my home care workers are all independent contractors?
Some home care employers classify home care workers as "independent contractors" instead of employees. Based on my experience, this classification if fraught with significant problems and can, and has often, resulted in significant liability under state and federal laws, including unemployment, worker's compensation, internal revenue code (tax code), and other issues. This is not to say that all "independent contractors" are employees. But employers should be careful with this classification and contact an attorney to review their policies to ensure compliance with state and federal statutes and regulations. If the employer has properly classified independent contractors, then these changes do not affect those relationships.
Employers affected by these regulatory changes should:
- Identify all home care workers working with or for the employer;
- Carefully review current classifications and compensation policies;
- Modify or reclassify the nature of the relationships with home care workers where necessary to comply with federal and state statutory and regulatory requirements; and
- Modify and implement policies and procedures to comply with the new rules prior to January 1, 2015.
Please contact us if you have any questions or would like assistance in these matters.