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Gianelli & Associates News Blog

Monday, November 2, 2015

Changes in Overtime for Caregivers

As the relationship of a caregiver and client is unique and valuable, prior law allowed for an overtime exemption to give families flexibility when scheduling caregivers in accordance with their needs. Now, a law effective January 1, 2014 has expanded overtime pay requirements under the Fair Labor Standards Act (FLSA) to include in-home caregivers.

The bill creates the Domestic Worker Bill of Rights to regulate the work hours and provide an overtime compensation rate for domestic work employees. These new requirements affect domestic workers as well as personal attendants. There is an important distinction between the two which needs attention in order to best understand how the new bill changes the law.

Domestic Workers

A domestic worker includes nannies, childcare providers, caregivers or attendants to seniors or people with disabilities, housecleaners, cooks, gardeners, and other household workers.  Domestic workers essentially work in a private home whether hired directly or through an agency. Previously, those domestic workers who provided “companionship services” or were live-in workers were categorized the same as babysitters and were exempt from overtime laws.

Personal Attendants

A personal attendant formerly had a different status under the law from a domestic worker.  A personal attendant spends a significant amount of their time giving care and can be live-in employees including in-home health aides, personal care aides, nursing assistants, and other home care workers. This type of caregiver usually offers services which include assistance with bathing, showering, obtaining medical care, preparing meals, shopping, driving and making phone calls. Personal attendants were previously categorized as “companions” and fell into the same category as babysitters and were ineligible for overtime compensation.

Companionship services

“Companionship services” is the term that requires attention under the changes in law. Any person employed through an agency either as a domestic worker or a personal attendant for “companionship services” is entitled to overtime, but those directly hired by a family are not. However, the new law limits “companionship services” to include only fellowship and protection. Fellowship consists of engaging the client in activities such as conversations, reading, games, crafts, or walking. Protection means that the caregiver is present with the client at home or accompanies them when they are outside the home to monitor their safety and well-being. 

New Guidelines

Under the new law, a caregiver hired by a family directly may only engage in limited in-home care type activities like bathing, administering medicine, preparing meals, housework, etc. for up to, but no more than, 20% of their total average working hours in order to remain exempt from overtime. If more than 20% of their time is spent doing in-home activities or activities requiring additional work beyond “companionship services,” then they are considered a regular domestic worker and would be entitled to overtime.

Under the Domestic Worker Bill of Rights, personal attendants have basically merged into the same category as domestic workers and all are eligible for overtime pay. The distinction between the two is still used, but personal attendants are given the same status as domestic workers for the purpose of receiving certain compensation. This means that almost all live-in caregivers, whether directly hired or hired through an agency, are entitled to overtime. Certain exemptions are still in place for those directly hired to offer “caregiving services” or personal attendants hired under state funded programs which provide personal care services. These include the In Home Support Service (IHSS), the Department of Developmental Services (DDS), etc. Also exempt, are close family members and casual babysitters.

Around the clock services

The new overtime compensation is in effect for those caregivers, either domestic workers or personal attendants, offering services around the clock for seniors in their homes and caregivers hired by agencies for “companionship services.”. The caregivers are now entitled to overtime pay for any hours worked beyond a 9 hour work day or 45 hours in a workweek. If the caregiver is a domestic worker, they must also be given rest breaks and meal periods, but if they are a personal attendant they are only entitled to the overtime rate. When calculating overtime for the live-in care providers, sleep time can only be deducted when the shift is 24 hours, and then, 8 hours for sleep time may be deducted, but only if the care giver received 5 hours of uninterrupted sleep.

This has a potentially large impact for those of you that do retain in-home care or assistance. By employing someone either directly or indirectly by way of a care provider agency, you are a domestic work employer and have established an employer-employee relationship under the law. The law offers your employees the same rights and benefits of regular employment and obligates you as the employer to ensure that they receive their due.

Because a large percentage of seniors choose to live at home, other options may become necessary in order to prevent overtime charges accruing unexpectedly in effect from the new law. Many of you may be tempted to avoid hiring through an agency and hire your caregiver directly; however, this makes accurate record keeping essential because the overtime hours may still accumulate if more than 20% of this caregiver’s job is providing services other than “companionship,” which is a very likely scenario if you are receiving around the clock care. One option may be to move from in-home care to an assisted living or nursing home facility. Another option may be to split the shifts among multiple caregivers, each relieving the former, in order to avoid an overtime scenario. Seeking government assistance in the provision of a caregiver may also give another route to avoid the overtime pay. Finally, choosing to have a family member provide care may be a viable alternative. 


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