Direct hiring of senior caregivers by families continues to increase, and families have questions about minimum wage, overtime rules for senior home care workers, and questions about what constitutes payable hours during the care day.
Senior Home Care Overtime Law and Minimum Wage
The Fair Labor Standards Act (FLSA) applies minimum wage and overtime rules to household or domestic service workers, including in-home senior caregivers. There are some exceptions:
Live-in Domestics: Domestic service workers who reside with their employers are exempt under the FLSA from overtime premiums. (State overtime laws for senior caregivers vary – this is not universal!) The live-in senior caregiver must be paid for all hours on duty at no less than the minimum wage; however, they are not entitled under Federal law to the “time and one half” premium.
Companionship Exemption: Bona fide companions employed by a private household are exempt from both minimum wage and home care overtime law in the FLSA, yet they remain employees subject to Social Security and Medicare taxation. Effective in 2015, only senior caregivers whose job responsibilities meet the standard duties of a companion senior home-care worker may qualify for the Companionship Exemption. Senior care companions paid directly by the family are employees of the care recipient or his/her family, and the employer is responsible for all employment tax filings and remittances.
The FLSA defines companionship services as “services which provide fellowship and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs.” These services may include help with bathing, dressing, eating, etc. so long as such “personal care services” are”incidental” and do not exceed 20% of the caregiver’s time. A bona fide companion may provide NO general household work. Where the 20% personal care limitation is exceeded or general household services are provided, the employee must be paid overtime. Again, state overtime rules vary and not all recognize the companionship exemption.
If the facts and circumstances of the caregiving services match the rules and regulations regarding Companionship Care Services, individuals may negotiate compensation at their own discretion, understanding that fair and reasonable compensation is the best guarantee of low turnover and employee dedication to the work.
Senior Home Care Workers and Sleep Time
Many senior caregivers provide around the clock care for several days at a time. These caregivers typically do sleep when care is not actively required, such as when the senior is himself sleeping. How is this time compensated?
The FLSA allows up to 8 hours of “sleep time” to be uncompensated for overnight care that is BOTH contiguous with a scheduled work day (24 hour+ shift) AND truly affords the senior caregiver a minimum of 5 hours of uninterrupted sleep. California does not permit the exclusion of sleep time.
US News and World Report recently noted that “by a 9-to-1 ratio, people prefer to stay in their homes as they get older rather than moving into an institution.” They often become household employers as they hire individuals to help them age in place. Working out these important details with an in-home senior home care worker insures a safe and healthy situation for all.
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