This information aims to address the questions of many caregivers who were used to be working uninterrupted in the past. The Department of Labor has issued the new regulation that falls under the so-called DOMESTIC CARE ACT.
*U.S. Court of Appeals Upholds DOL Rule - for more information, click here:http://www.dol.gov/whd/homecare/litigation.htm
13- Q. What is the companionship services exemption?A. Congress explicitly extended FLSA coverage to "domestic service" workers in 1974, amending the Act to apply to employees performing household services in a private home, including those domestic service workers employed directly by households or by companies too small to be covered as enterprises the Act. While Congress expanded protections to "domestic service" workers, the 1974 amendments also created a limited exemption from both the minimum wage and overtime pay requirements of the Act for domestic service workers employed to provide "companionship services" for elderly people or people with illnesses, injuries or disabilities who require assistance in caring for themselves. The statute authorizes the Department of Labor to define the term "companionship services." The Final Rule defines "companionship services" as the provision of fellowship and protection and explains that "companionship services" may also include the provision of care if the care is provided attendant to and in conjunction with the provision of fellowship and protection and does not exceed 20 percent of the total hours worked per person and per workweek.
14- Q. What are tasks that constitute fellowship and protection?A. "Fellowship" means to engage the person receiving services in social, physical, and mental activities. "Protection" means to be present with the person receiving services in his or her home or to accompany the person when outside of the home to monitor the person's safety and well-being. Examples of fellowship and protection may include: conversation; reading; games; crafts; and accompanying the person on walks, on errands, to appointments, or to social events.
15- Q. Do other activities or services qualify as companionship services?A. "Companionship services" also includes the provision of care services under the following conditions:
16- Q. Must driving always be counted in the 20 percent allowance for care services?No. Driving usually constitutes assistance with IADLs and is part of the 20 percent allowance for care services. But because fellowship and protection can include accompanying the person outside of the home, driving may, in limited circumstances, be part of those services. The distinction between driving that is part of fellowship and protection and driving that constitutes assistance with IADLs depends upon the purpose and context of the trip. For example: Henry is hired as a personal attendant for Mr. Clark, an elderly person who requires assistance with meal preparation, driving, and light housework. Henry's duties include driving Mr. Clark to medical appointments. The time he spends at that task would count toward the 20 percent limitation on care. But if Henry takes Mr. Clark on an outing such as taking a scenic drive to see fall foliage or driving to go out to lunch together, Henry would be providing fellowship and protection, and that time would not count toward the 20 percent limitation on care.
17- Q. What happens if the worker spends more than 20 percent of his or her time in a week assisting the person with ADLs and IADLs?A. If a worker providing services in a private home spends more than 20% of his or her workweek providing assistance to the person with ADLs and IADLs, then he or she is not performing companionship services during that week. In such cases, the worker must be paid at least the Federal minimum wage for all hours worked and overtime at one and a half his or her regular rate of pay for hours worked over 40 in the workweek.
18- Q. Does "companionship services" include activities such as making dinner for the entire household or washing the laundry for everyone in the household?A. No, companionship services must be provided primarily for the benefit of the elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself rather than for other members of that person's household. However, the Department recognizes that sometimes assisting the person with IADLs may benefit other household members. For example, if a domestic service worker makes tuna salad for the person's lunch and there is some tuna salad left over after the person has eaten lunch, the fact that another member of the household may eat the leftover tuna salad doesn't change the fact that the tuna salad was prepared primarily for the elderly person or person with an illness, injury, or disability. Similarly, if the domestic service worker dusts a bedroom the person shares with another household member and the dusting was performed primarily for the benefit of the elderly person or person with an illness, injury or disability, performance of that task does not mean the worker is not performing companionship services. If a worker performs general household services unrelated to the care of the person, however, he or she is not performing companionship services and he or she must be paid at least the Federal minimum wage and overtime at one and a half times his or her regular rate of pay for all hours worked over to in the workweek.
19- Q. Are medically related services considered part of companionship services?A. No "Companionship services" does not include the performance of medically related services for the person. The determination of whether services are medically related is based on whether the services typically require and are performed by trained personnel, such as registered nurses, licensed practical nurses, or certified nursing assistants; the determination is not based on the actual training or occupational title of the individual performing the services. Medically related tasks may be invasive, sterile, or otherwise require the exercise of medical judgment; examples include but are not limited to catheter care, turning and repositioning, ostomy care, tube feeding, treating bruising or bedsores, and physical therapy. If the worker performs medically related services for the person, then during that workweek he or she must be paid at least the Federal minimum wage for all hours worked and overtime at one and a half his or her regular rate of pay for hours worked over 40 in the workweek.
Live-In Domestic Service Employees
20- Q. What is a "live-in" domestic service employee?A. Employees providing domestic services in a private home who reside on the employer's premises are live-in domestic service employees exempt from the overtime requirements of the FLSA. Employees reside on the employer's premises if they work and sleep there on a "permanent basis" or for "extended periods of time." Employees who work and sleep on the employer's premises seven days per week and therefore have no home of their own other than the one provided by the employer under the employment agreement are considered to reside on the employer's premises on a "permanent basis." Employees who work 120 hours or more each week and work and sleep on the employer's premises five days a week reside on the employer's premises for "extended periods of time." Employees who work and sleep on the employer's premises for five consecutive days or nights each week would also qualify as residing on the premises for "extended periods of time" even if they do not work 120 or more hours each week. Employees who work for only a short period of time for the household are not considered live-in domestic service workers, because residing on the premises implies more than temporary activity. Employees who work 24-hour shifts but are not residing on the employer's premises "permanently" or for "extended periods of time" are not considered live-in domestic service workers, and the employers are not entitled to the overtime pay exemption. Employees who work 24-hour shifts but are not live-ins must be paid at least minimum wage and overtime for all hours worked unless they are otherwise exempt. See Fact Sheet #79B: Live-In Domestic Service Workers Under the Fair Labor Standards Act (FLSA) for more information.
21- Q. What are employers' obligations to live-in domestic service employees?A. Domestic service workers who reside in the employer's home and are employed by an individual, family, or household are exempt from the overtime pay requirement, although they must be paid at least the Federal minimum wage for all hours worked. Third party employers, such as home care agencies, may not claim the overtime exemption for live-in domestic service workers, and must pay such workers at least the Federal minimum wage for all hours worked and overtime pay at one and a half times the regular rate of pay for all hours worked over 40 in a workweek. (See Fact Sheet #79E: Joint Employment in Domestic Service Employment Under the Fair Labor Standards Act (FLSA) for information about joint employment.)
22- Q. Will live-in domestic service workers be entitled to overtime pay under the Final Rule?A. Live-in domestic service workers who reside in the employer's home and are employed solely by an individual, family, or household are exempt from overtime pay, although they must be paid at least the federal minimum wage for all hours worked. Live-in domestic workers who are employed by a third party must be paid at least the federal minimum wage and overtime pay for all hours worked. Only the third party is responsible for compliance with the FLSA's overtime requirement; if an individual consumer, family, or household may properly claim the live-in domestic service employee exemption, that person will not be liable for overtime pay obligations, regardless of any involvement of a third party.
23- Q. Does the Final Rule make other changes relevant to live-in domestic service workers?A. As with all workers covered by the FLSA, employers must maintain an accurate record of hours worked by live-in domestic service workers. Employers and live-in domestic service workers may create an agreement regarding time to be excluded from hours worked, including bona fide meal periods, sleep periods, and other off-duty time. If there is significant deviation from such an agreement, the employer and live-in domestic service worker should reach a new agreement reflecting the actual schedule. Regardless of whether an agreement exists, the employer is required to keep records showing, among other things, the exact number of hours worked by the live-in domestic service worker. While the employer is ultimately responsible for complying with the recordkeeping requirements, an employer may assign a live-in domestic employee the tasks of recording his or her hours worked and submitting those records to the employer. See Fact Sheet #79B: Live-In Domestic Service Workers under the Fair Labor Standards Act (FLSA) for more information.
24- Q. What are the rules for determining how many hours a live-in domestic service worker has worked and therefore for which she must be paid?A. A live-in domestic service worker and the employer may make an agreement excluding from hours worked sleep time, meal time, and other periods of freedom from all duties when the worker leaves the premises or stays on the premises for purely personal matters. The live-in domestic service worker must be paid for all hours worked even if those hours deviate from the agreement.
Information about reasonable agreements in the context of shared living arrangements (such as adult foster care and paid roommate situations) is available in guidance documents that can be found at http://www.dol.gov/whd/homecare/shared_living.htm.
25- Q. How do these rules apply to shared living arrangements?A. The Department has issued guidance specifically about how the Fair Labor Standards Act, including the new Final Rule, applies to shared living arrangements, including adult foster care and paid roommate situations. The guidance explains how to determine whether the FLSA applies to a given arrangement and if so, how the employer can comply with it, including when an employer may exclude sleep time from paid time and how to calculate wages when an employer properly takes credit for providing an employee's room and board. The guidance is available at http://www.dol.gov/whd/homecare/shared_living.htm.
Home care agencies and other third party employers
26- Q. What is a third party employer?A. A worker may be employed by the individual, family, or household for whom the worker provides services and may also be employed by another employer, such as a staffing agency, public agency, or home care agency. When the domestic service employee is employed by an employer other than an individual, family, or household to perform services, that other employer is the third party employer.
27- Q. Is a fiscal intermediary or employer of record considered a third party employer?A. It depends Certain entities may provide referral services, perform payroll functions, or process Medicaid reimbursement payments but not act as the employer of a worker. Such entities may be fiscal intermediaries or "employers of record" and are not held liable for payment of minimum wage or overtime pay. Under the Fair Labor Standards Act, determinations about whether an entity has an employment relationship with a worker are made by examining all the facts in a particular case and assessing the economic realities of the work relationship. Factors to consider may include, but are not limited to, the following:
Example 1:Mary contacts her state government about receiving home care services. The state has a "self-direction program" that allows Mary to hire a direct care worker through an entity that has contracted with the state to serve as the "fiscal/employer agent" for program participants who employ direct care workers. The "fiscal/employer agent" performs tasks similar to those that commercial payroll agents perform for businesses, such as maintaining records, issuing payments, addressing tax withholdings, and ensuring that workers' compensation insurance is maintained for the worker, but is not involved in any way in the daily supervision, scheduling, or direction of the employee. Mary has complete budget authority over how to allocate the funds she receives under the Medicaid self-direction program, negotiates the wage rate with the direct care worker, is wholly responsible for day-to-day duty assignments, and has the sole power to hire and fire her direct care worker. In this scenario, the fiscal/employer agent is likely not an employer of the direct care worker, and Mary is likely the sole employer. The fiscal/employer agent has no power to hire or fire, direct, control, or supervise the worker and cannot modify the pay rate or modify the employment conditions. The work is not performed on the fiscal/employer agent's premises, and the fiscal/employer agent has provided no tools or materials required for the tasks performed. However, any change in the specific facts of this scenario, such as if direct care workers are required to obtain approval from the fiscal/employer agent in order to arrive late or be absent from work or if the fiscal/employer agent sets the direct care workers' specific hours worked, may lead to a different conclusion regarding the employer status of the fiscal/employer agent.
Example 2: Michael contacted his county government about receiving home care services. A county social worker met with Michael and made a determination with respect to Michael's financial eligibility and need for services. The social worker determined the tasks to be performed for Michael and the hours per week required to perform those tasks. The social worker provided Michael with a list of potential workers but after Michael forgot to contact the potential workers several times, the social worker hired the direct care worker himself. While Michael is responsible for the day-to-day supervision of the direct care worker, the social worker intervenes if a problem arises such as arranging for another worker should the primary worker become unavailable. The county is considered to be the employer of record, as it pays the direct care worker directly via check, keeps records of hours worked, and the hourly rate of pay for the worker is determined by the county. Here, the direct care worker's wages are paid by the county and the county controls the rate of pay and the method of payment. The county maintains employment records. The county exercises considerable control over the structure and conditions of employment by determining the number of hours for work and what tasks are to be performed. The county intervenes in issues between the direct care worker and consumer and the county social worker hired the worker. In this instance, the county is likely a joint employer with the consumer.
28- Q. What are the obligations of third party employers?A. Third party employers must pay at least the Federal minimum wage and overtime pay to all workers employed to perform domestic service employment, including workers who perform companionship services or are live-in domestic service employees.
Third party employers must pay home care workers for all hours those employees work. Hours worked include time spent traveling between multiple individuals receiving services if the third party employer is an employer as to each individual; for example, if a home care agency assigns a worker to provided services to one of its clients in the mornings and another in the afternoons, the time the worker spends driving from one client's home to the other's must be paid. In addition, a third party employer is responsible for any overtime generated by working for multiple individuals receiving services; for example, if a state administering a Medicaid-funded, consumer-directed program is a joint employer of the care providers hired through the program, a worker who provides 30 hours of services to one Medicaid recipient enrolled in the program and 20 hours of services to another must ensure that the worker receives 10 hours of overtime compensation.
Third party employers must maintain records for each employee working in domestic service employment just as employers are required to maintain records for any other non-exempt employee. See Fact Sheet #79C: Recordkeeping Requirements for Individuals, Families, or Households who Employ Domestic Service Workers Under the Fair Labor Standards Act (FLSA).
29- Q. What do the changes made by the Final Rule to third party employer's obligations mean for individuals receiving services and their families?A. Where a worker is performing duties that fit within the definition of companionship services, the individual receiving services (or his or her family or household) may claim the companionship services exemption, but any third party employer of that worker may not. This means that the third party employer is responsible for ensuring that the worker is paid minimum wage and/or overtime compensation in compliance with the Fair Labor Standards Act and the individual, family, or household will not be held responsible for any wages that are not paid.
The same is true of the live-in domestic service employee exemption. No third party employer may claim the exemption, but an individual, family, or household may claim it the worker meets the exemption's residency requirements. In other words, if the exemption is properly claimed, the individual, family, or household will not be held responsible for any overtime compensation the third party employer fails to pay.
Updated! - Sleep Time Requirements (Shifts of Less than 24 hours, Shifts of 24-hours or more, and Live-in Employee):
Updated! - 30- Q. During an overnight shift, does an employee have to be paid when he or she is asleep?A. It depends on the employee’s schedule and whether certain requirements are met.
Shifts of Less than 24 hours
Under the FLSA, an employee who works a shift less than 24 hours must be paid for the entire time he/she is required to be at the worksite even if he/she is permitted to sleep or engage in other personal activities when not busy. All the time is counted as work time that must be paid.
Shifts of 24-hours or more
If an employee is required to be at the worksite for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, (2) the employee's time spent sleeping is usually uninterrupted, and (3) there is an expressed or implied agreement to exclude sleep time.
Live-in employee who resides at the worksite on a permanent basis
If an employee resides at his/her worksite on a “permanent basis,” meaning the employee has no other home, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for some other hours during the workweek, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.
Live-in employee who resides at the worksite for extended periods of time
If an employee resides at his/her worksite for “extended periods of time”, meaning the employee does not live there exclusively but meets the live-in residency requirements, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for at least eight hours per 24-hour period, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.
Note: See questions and answers for Live-in Domestic Service Employees for additional information regarding the definitions of “permanent basis” and “extended periods of time”.
Updated! - 31- Q. What are the requirements for the exclusion of sleep time from hours worked during shifts of 24 hours or more?A. Sleep time may be properly excluded from compensable hours worked for an employee on duty for 24 hours or more if (1) adequate sleeping facilities are furnished by the employer, (2) the employee's time spent sleeping is usually uninterrupted, and (3) there is an expressed or implied agreement to exclude sleep time.
Whether an employer has provided “adequate sleeping facilities” to a domestic service employee depends on the facts and circumstances of a particular living arrangement. In general, an employer must ensure that the employee has access to basic sleeping amenities; reasonable standards of comfort; and basic bathroom and kitchen facilities. The sleeping area and other facilities can be shared or private.
An employee can “usually get an uninterrupted night’s sleep” if an employer’s interruptions that prevent him/her from getting five consecutive uninterrupted hours of sleep occur less than half the time. However, interruptions to an employee’s five consecutive hours of sleep that occur during half or more than half of an employee’s shift are too frequent to meet this requirement.
An “expressed or implied agreement” regarding the exclusion of sleep time means either a written or verbal agreement that an employee will not be paid for sleep time or an agreement to exclude sleep time that is implied by the employer and employee’s conduct. If an employee objects to the exclusion of sleep time from her hours worked, no such agreement exists and all hours spent on duty, including time spent sleeping, must counted as work time.
Updated! - 32- Q. What are the requirements for the exclusion of sleep time from hours worked for live-in employees?A. To exclude sleep time from the hours worked of an employee who lives at the worksite, (1) the employer and employee must have a reasonable agreement to exclude sleep time, and (2) the employer must provide the employee “private quarters in a homelike environment”
The reasonable agreement should be in writing in order preclude any misunderstanding of terms and conditions of an individual’s employment.
Private quarters means living and sleeping space that is separate from the person receiving services. A homelike environmentmeans space that includes facilities for cooking and eating, a bathroom, and a space for recreation.
For example, a home health aide and a consumer could live together in a two-bedroom apartment with a living room, kitchen with dining space, and bathroom. The consumer uses one of the bedrooms, and the provider uses the other. The provider’s bedroom contains a bed, night table, dresser, two lamps, and a desk and chair; the provider stores personal possessions in the room. Both the consumer and provider use the living room, kitchen, and bathroom. The provider, consumer, and a third party home care agency all signed a written agreement that the employee’s hours will not include the hours between 11:00pm and 7:00am, when she sleeps. In these circumstances, because the employee has private quarters in a homelike environment and a reasonable agreement with her employers regarding the exclusion of sleep time, the consumer and the agency may exclude from the home care worker’s hours worked the eight hours per night between 11:00pm and 7:00am.
Additional information about sleep time and hours worked requirements is available is available at Fact Sheet 79D, Hours Worked Applicable to Domestic Service Employment under the Fair Labor Standards Act (FLSA).
Updated! - 33- Q. If the employee has already been providing domestic service to an individual, family, or household and does not have an agreement about sleep time, must the employer now pay for all sleep time?A. An employer and employee may enter into an agreement to exclude a scheduled sleeping period of not more than 8 hours from the employee's hours worked at any time. For live-in employees, the agreement should be in writing. To exclude such time, the employer must meet the additional requirements.
Updated! - 34- Q. If the employee refuses to enter into the agreement to exclude sleep time, may the employer terminate the employment relationship?A. No. While the employer may not terminate an employee for refusing to enter into an agreement or for ending an agreement, the employer would not be required to agree to a continuation of the same terms and conditions of employment. The employer and employee are free to establish new conditions of employment such as rate of pay, hours of work, or reassignment. For example, if an employee refuses to enter into an agreement regarding the exclusion of sleep time, an employer might decide to assign that employee only to shifts of less than 24 hours.
Updated! - 35- Q. What if an employee whose sleep time is generally properly excluded from hours worked is woken up to provide services to a consumer for one hour?A. Interruptions during which the worker performs tasks on behalf of the consumer must always be paid as work time. In this circumstance, the employee must be paid for the hour her sleep is disturbed.
Updated! - 36- Q. What if an employee is up multiple times throughout the night or all night providing services?A. Interruptions during which the worker performs tasks on behalf an employer must always be paid as work time. If the interruptions are so frequent that the employee cannot get reasonable periods of sleep totaling at least five hours during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.
Updated! - 37- Q. Can a third party employer enter into an agreement with a live-in domestic service employee that excludes sleep time and other off-duty time?A. Yes, provided the requirements for excluding such time are met. Although third party employers may not claim the live-in domestic service employee exemption from the FLSA's overtime requirement, the other special rules for live-in employees, such as the ability to enter a reasonable agreement setting out what time is hours worked and what is excluded from hours worked, such as sleep time, still apply.
Updated! - 38- Q. If an employee lives in the employer's home, what constitutes compensable hours worked?A. An employee who resides in the employer's home permanently or for extended periods of time need not be paid for all of the time spent at the home. When a live-in employee engages in normal personal activities such as eating, sleeping, entertaining, and other periods of complete freedom from all duties, he or she does not have to be paid for that time. For a live-in domestic service employee, such as a live-in roommate, the employer and employee may agree to not pay for time spent during bona fide meal periods, sleep periods, and off-duty time. If the meal periods, sleep time, or other periods of free time are interrupted by a call to duty, the interruption must be counted as hours worked. In these circumstances, the Department will accept any reasonable agreement of the parties taking into consideration all of the pertinent facts. However, the employer must track and record all hours worked by domestic service employees, including live-in employees, and the employee must be paid for all hours actually worked notwithstanding the existence of an agreement. The employer may assign the employee the tasks of recording the hours worked and submitting that record to the employer.
Information about reasonable agreements in the context of shared living arrangements (such as adult foster care and paid roommate situations) is available in guidance documents that can be found at http://www.dol.gov/whd/homecare/shared_living.htm.
Updated! - 39- Q. Under my state law, all sleep time during which a home care worker is required to be in the home must be paid at the state minimum wage or higher. In other words, under state law, all sleeping hours must be included as worked, paid time. But under the federal FLSA, this sleep time can under many circumstances be excluded from hours worked. Must those hours, because they are paid pursuant to state law, be included in a calculation of overtime due pursuant to the FLSA?A. No. Payment for time not otherwise required to be compensated under the FLSA does not necessarily convert that time into FLSA hours worked—i.e., time that must be paid according to FLSA requirements. The Department's regulations provide that whether the time that is not required to be compensated becomes hours worked depends on the intent of the parties. See 29 C.F.R. § 778.320. If the employer and employee have an agreement to exclude sleep time from FLSA hours worked, even if the time is paid under state law, that agreement, if reasonable, controls.
In such circumstances, the excluded hours do not count towards total hours worked for purposes of determining whether the FLSA's minimum wage requirement is met or how much overtime compensation is owed pursuant to the FLSA. In addition, the money paid for the excluded time is not to be included in calculating the employee's regular hourly rate for FLSA purposes, nor may it be counted toward meeting any FLSA overtime obligation the employer has.
For example, assume a home care worker works 50 hours per week during daytime shifts and 32 hours per week on overnight shifts (four, eight-hour overnight shifts, for example), during which she gets uninterrupted sleep and otherwise meets the requirements for the exclusion of sleep time under the FLSA (the sleep time rules apply to a live-in worker or one who works shifts of 24 hours or more.) She is paid $12 per hour for daytime work and $10 per hour for the overnight time. She would be owed 10 hours of overtime compensation (50 non-excludable hours minus 40 hours for which no overtime must be paid). Because her regular rate of pay for FLSA hours worked is $12, her overtime compensation due is $60 ($12 x .5 x 10). The $320 she receives for the 32 overnight hours may not be counted toward the $60 obligation, so she should receive $980 ($600 regular pay for daytime hours + $60 overtime compensation + $320 pay for sleep time (required by state law)) each week.
40- Q. Must an employer pay for the employee's drive or travel time from home to the residence of the individual receiving services?A. No. Under the FLSA, normal home-to-work travel does not need to be paid regardless of whether the employee works at a fixed location or at different job sites. If a direct care worker travels to the first work site directly from home, and returns directly home from the final work site, this commuting travel time generally does not need to be paid.
41- Q. If an employee provides services to multiple individuals during the workday and must travel between these worksites, does that travel time count as work time that must be paid?A. Yes. Under the FLSA, employees who travel to more than one worksite for an employer during the workday must be paid for travel time between each worksite. If an employee works for two different employers, he or she does not need to be compensated for time spent traveling between the two employers' worksites.
42- Q. How is the travel time counted if an employee does not travel directly between the homes of two individuals receiving services?Workers who travel to more than one worksite for an employer during the workday must be paid for travel time between each worksite; if the travel is not direct because the employee is relieved from duty long enough to engage in purely personal pursuits, only the time necessary to make the trip must be paid.
For example, Tiffany is a direct care worker who is employed by Handy Home Care Agency. She provides services to two of the agency's clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Tiffany drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson's home at 11:30am and goes to a restaurant for lunch, shops for herself, and then arrives at Mr. Smith's home at 2:00pm.
Because Tiffany is completely relieved from duty long enough to use the time effectively for her own purposes (i.e., lunch and shopping) not all of the time is hours worked. The 30 minutes required to travel between the two homes is hours worked and, as of January 1, 2015, must be paid by the Handy Home Care Agency even though Tiffany did not travel directly between consumers.
43- Q. If an employee provides assistance to an elderly person or person with an illness, injury or disability by driving or accompanying him or her to an errand or appointment, must that time be paid?A. Yes. Under the FLSA, travel that is "all in the day's work" must be compensated. For example, if a domestic service employee drives an elderly person or person with an illness, injury or disability to a doctor's appointment or to the grocery store, that time is "all in the day's work" and must be compensated.
44- Q. If an employee travels to another city with an elderly person or person with an illness, injury or disability, must all the time spent traveling be paid?A. The Department considers all travel that keeps an employee away from home overnight to be a special class of travel away from home. Travel away from home is work time to the extent that the travel cuts across the employee's workday. The travel is simply a substitute for the employee's other duties. A direct care worker who accompanies an elderly person or person with an illness, injury or disability on travel away from home must be paid for all time spent traveling during the employee's normal work hours. On the other hand, as an enforcement policy, the Department will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. However, an employee traveling as a passenger with an elderly person or person with an illness, injury or disability as an assistant or helper and "on duty" during the flight is working even though traveling outside of the employee's regular work hours.
45- Q. If an employee travels on a plane with an elderly person or person with an illness, injury or disability outside of the employee's normal work day and is required to assist the person only during the beginning and end of the flight and is otherwise able to spend the flight time for his or her own purposes, such as reading a magazine, taking a nap or watching a movie, must the entire flight time be paid?A. Any work which an employee performs while traveling must be counted as hours worked. However, it is clear that not all time spent while away on travel is hours worked and there may be significant periods of time that a direct care worker is not working and is not "engaged to wait" and thus need not be compensated. For example, periods when the employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for his or her own purposes, such as reading a magazine, taking a nap or watching a movie, are not considered work time that must be paid.
46- Q. May a home care provider be paid a daily or shift rate?A. A home care provider entitled to the protections of the Fair Labor Standards Act (FLSA) can be paid an hourly rate, daily rate, shift rate, monthly stipend, or on a salary basis as long as the employee’s overall earnings for the workweek result in a “regular rate” of pay for all hours worked that is at least the current Federal minimum wage. The “regular rate” under the FLSA is an hourly rate of pay determined by dividing the employee’s total compensation in the workweek by the total number of hours actually worked in that workweek. For example, a worker who earns $50.00 per day and works 5 hours on Day 1 and 6 hours on Day 2 (and no other days that week) has been paid in compliance with the FLSA’s $7.25 minimum wage requirement because the employee’s “regular rate” of pay is $9.09 per hour ($100 of pay divided by 11 hours of work). An employee’s “regular rate” of pay is used to determine any additional overtime compensation owed if an employee works more than 40 hours in a workweek.
47- Q. Is overtime compensation required if a care provider works more than 40 hours in a week but for two different individuals?A. A nonexempt employee must be paid overtime if she works more than 40 hours in a workweek for any single employer. So if a home care provider works for a single agency, all of her work time arranged by that agency counts; for example, if she works for Consumer A for 20 hours and Consumer B for 25 hours, she is owed 5 hours of overtime compensation. If, however, her work for Consumer A is arranged by one private agency and her work for Consumer B is arranged by another, separate agency, she is not owed overtime compensation by either of her two agency employers.
48- Q. How is overtime calculated when a home care provider is paid different hourly rates for different types of work?A. Under the FLSA, an employer may pay the same employee different rates for different types of work as long as the employee’s regular rate of pay is at least the minimum wage. As in all circumstances, an employer may not manipulate rates or payment methods for the purpose of avoiding its obligation to pay overtime compensation. For example, it is not permissible to pay a lower rate for all hours over 40 in a workweek or for all hours in a workweek in which the employee works more than 40 hours.
If an employee receives different rates of pay for work in a single workweek, the employee’s “regular rate” for that week is the weighted average of such rates (or “blended rate”). That is, each workweek, the earnings from all hourly rates are added together and the sum is then divided by the total number of hours worked at all jobs for the same employer, and the overtime pay due is one-half of that result times the number of hours worked over 40.
For example, assume an employee of a home care agency is paid $10.00 per hour for time spent providing care and $8.00 per hour for travel time. In a particular workweek, the employee worked 45 hours providing care and 5 hours traveling. The calculations for computing the overtime compensation due in this workweek using the weighted average are as follows:
($10.00 × 45 hours) + ($8.00 × 5 hours) = $490.00 of straight time pay
$490.00 ÷ 50 total hours = $9.80 is the weighted average (regular rate)
50 total hours – 40 hours = 10 overtime hours worked
$9.80 × .5 × 10 overtime hours = $49.00 in overtime compensation
$490.00 + $49.00 = $539.00 is the total amount dueAlternatively, an employer may calculate the overtime obligation based on the rate for the particular task(s) performed during the hours over 40 in the workweek (i.e., the “rate in effect” or “applicable rate”), but only if there is an agreement or understanding with the employee (made in advance of the performance of work), the hourly rate(s) upon which the overtime is computed are at least the Federal minimum wage, and the hourly rate(s) are actually paid for such work when performed during non-overtime hours.
Using the scenario above, assume the employee’s 10 hours of overtime consisted of 7 hours of providing care and 3 hours of travel. The calculations for paying overtime based on the rate in effect are as follows:
($10.00 × 45 hours) + ($8.00 × 5 hours) = $490.00 of straight time pay
$10.00 × .5 × 7 hours = $35.00 in overtime compensation for hours of care services over 40 total hours in the workweek
$8.00 × .5 × 3 hours = $12.00 in overtime compensation for hours of travel time over 40 total hours in the workweek
$35.00 + $12.00 = $47.00 total overtime compensation due
$490.00 + $47.00 = $537.00 is the total amount due
48B- Q. Can a home care provider be paid different hourly rates for the same or similar services provided to different consumers?A. Under the FLSA, an employer may pay different rates for different jobs held by the same employee as long as the employee’s regular rate of pay is at least the minimum wage and the rates are not used as a device for avoiding the payment of proper overtime compensation. Providing services to different consumers can be considered different jobs for purposes of this principle. Home Care FAQ #48 explains how to calculate the overtime obligation when different rates have been established.
49- Q. If a worker is employed at a private home that is inaccessible by public transportation and not close to stores, etc. so that the worker cannot leave the home during the day for his/her own purposes, (e.g., to run errands or shop), must all of the worker's work day be compensated?A. The FLSA does not require employees to have personal time to run errands, shop, etc. In many cases, employees are granted a meal break of at least 30 minutes. If the 30 or more minutes is free and clear of duties, it is not compensable time, even in situations where the worker is not able to leave the employer's premises. If the time is interrupted, then it is compensable.
50- Q. If a home care provider is in a home while an individual receiving services is napping and is required to be available whenever the individual wakes up, is this time considered hours worked even if the provider spends the time watching television or reading a book?Yes. Hours worked (i.e., the time that must be paid under the FLSA) includes time when the worker is being engaged to wait.
51- Q. Some home care workers who live with the consumer they serve do not pay rent. Their housing is often funded using the consumer's Section 8 voucher. Can a private agency employer credit the value of the housing towards the total wages considered received by the home care worker?A. Yes, provided certain requirements are met. Under section 3(m) of the FLSA, an employer may take credit toward wages for the reasonable cost or fair value of lodging provided to an employee under certain circumstances. This credit is addressed in the Department's guidance regarding the application of the FLSA to shared living arrangements, available athttp://www.dol.gov/whd/homecare/shared_living.htm, and will be described in more detail in an additional forthcoming guidance document. Note that—as explained in detail in the shared living guidance—it is a credit toward the minimum wage obligation; it does not count toward any overtime obligation.
In a situation in which there is joint employment, for example between a private (for-profit or non-profit) agency and a consumer, the credit applies regardless of which employer pays for the housing. Therefore, as long as the consumer's funds (whether private or received through public assistance), rather than the worker's, are used to pay for the worker's housing, the credit may be applicable even if the cash wages are paid by the agency.
Note that the credit may not exceed the actual cost to the employer of the housing, even if that cost is below market value, and that it must be calculated as a reasonable portion of the total cost of the lodging (e.g., one half of the rent of an apartment the consumer and worker share equally, or less than one half if the worker has a smaller private living space and/or less access to common areas).
Although agencies might not typically consider themselves to jointly employ home care workers along with consumers, for purposes of the FLSA, consumers will often be joint employers of the workers who provide them assistance. In the home care context, given the nature of the work, the consumer for whom services are performed (or the consumer's family or household, including a guardian) is very often a joint employer of the worker. Among other possible indications of employment status, if a consumer (or the consumer's family or household) exercises control over the staff person's work, such as by making decisions about who to hire, whether to fire, what the worker's schedule will be, what tasks the worker will perform and when, or how the worker will perform those tasks, the consumer is likely an employer under the FLSA test.