Paying Minimum Wage & Overtime to Home Care Workers: How to Follow FLSA Rules | Attorney Aaron Hall

Paying Minimum Wage & Overtime to Home Care Workers: How to Follow FLSA Rules

The following article explains minimum wage and overtime issues related to home care works, including FLSA rules that apply to employees.

Minimum wage

As of early 2016, the federal minimum wage is $7.25 per hour. That means any worker who is covered by the FLSA minimum wage protections must be paid at least $7.25 an hour for all hours worked. (see Hours Worked)

Example: Hourly rate

Your home care worker comes to your home 5 days each workweek for 5 hours each day, for a total of 25 hours each week. (A workweek is any set seven-day
period. For example, your workweek could be Monday to Sunday.) You pay your home care worker $10 per hour for a total of $250 each week. You have complied with the FLSA’s minimum wage requirement.

Credit toward wages for housing and meals provided to employees

Under certain circumstances, the FLSA allows you to count the cost of housing and food you provide to your home care worker toward the worker’s minimum wage payment. For more information, visit the Department’s Home Care Website and click on “Credit toward Wages under Section 3(m) of the FLSA for Lodging Provided to Employees.”

Example: Daily rate

You pay your home care worker $50 each day she comes to your house to provide services. One workweek, she comes 5 days and works a total of 25 hours. In that week, the worker would have received $250 ($50 per day x 5 days). That means her hourly rate of pay would be $10 ($250 total pay for the workweek / 25 hours). Because $10 is more than $7.25, you would have complied with the FLSA’s minimum wage requirement.

The next workweek, the home care worker comes to your house on 5 days, but she stays later on a few of those days and works a total of 40 hours. In that week, the worker would have received $250 ($50 per day x 5 days). That means she would have received only $6.25 per hour ($250 total pay for the workweek / 40 hours). You would owe her an additional $1 per hour to reach the federal minimum wage of $7.25, or $40 ($1 per hour x 40 hours).

Overtime pay

Overtime pay means one and a half times a worker’s regular rate of pay. If overtime pay is due, the worker must receive it for every hour worked over 40 hours in a workweek. (See Hours Worked)

Reminder: A workweek is any set seven-day period (for example, Monday to Sunday).

Example: Overtime calculations

Ellen is a certified nursing assistant employed by a home care agency and consumers who need assistance with medically related tasks. Her pay rate is $10 per hour. The agency must follow the FLSA rules, including paying her overtime, because agencies cannot claim the companionship services exemption. The consumers who are her employers must follow the FLSA rules, including paying her overtime, because she performs medically related tasks for them and does not live in their homes.
If this is Ellen’s schedule in a certain workweek:

Day of Week Time In Time Out Time In Time Out Hours Worked
Monday 6:00 AM 11:00 AM 2:00 PM 7:00 PM 10
Tuesday 6:30 AM 4:30 PM 10
Wednesday 6:00 AM 11:00 AM 3:00 PM 7:00 PM 8.5
Thursday 6:00 AM 11:00 AM 3:00 PM 10:30 PM 12.5
Friday 6:30 AM 3:30 PM 9
Total 50

 

Ellen is paid as follows:
Ellen must receive at least the federal minimum wage for all 50 hours worked in the workweek and overtime pay for the 10 hours over 40 in the workweek.
She receives $10 per hour for each of the first 40 hours in the workweek, which is $400. She receives $15 per hour for each of the 10 hours over 40 in the workweek, because one and a half times $10 is $15. That equals another $150. So if Ellen receives $550 total, she has been paid according to the FLSA overtime pay requirement.

Workweek
$10 x 40 regulars hours = $400
$15 x 10 overtime hours = $150
$400 + $150 = $550 in this workweek

 

Reminder: The worker only needs to be paid once. So if an agency or fiscal intermediary writes checks to your home care worker that include all of the wages owed, you don’t have to pay any additional wages to the employee.

Other minimum wage and overtime laws might apply

Some states have established minimum wage and overtime requirements that require higher payments to home care workers than these federal standards.
Where both laws apply, you must follow the law that provides the higher wage to the employee. Check your state laws to learn more. You can find your state law
at: www.dol.gov/whd/minwage/america.htm

What if I use an agency?

When selecting an agency to find a home care worker, consider asking that agency if they’re aware of and follow all federal labor laws, and pay their workers at least the federal minimum wage and overtime.

Hours Worked

Hours worked means time that an employee works for which an employer must pay. The FLSA requires payment for all time when the worker is providing
services or is required to be available to provide services. For example, if your home care worker is cooking for you or helping you get dressed, that time must be paid for, and is considered “hours worked.” Or if you are napping and the worker must be available whenever you wake up, the worker’s time is hours worked, even if she spends the time watching TV.

Time does not count as hours worked if an employee has a break long enough to use the time for his or her own purposes. For example, if your home care worker is free to go to a movie, run a personal errand, or attend an event at her child’s school, the worker does not have to be paid for this time.

For more information on how to determine what time is “hours worked” that must be paid under the FLSA, see Wage and Hour Division’s Fact Sheet #79D, Hours
Worked Applicable to Domestic Service Employment Under the FLSA. www.dol.gov/whd/homecare/factsheets.htm

Recordkeeping

If your home care worker must be paid minimum wage and/ or overtime, then someone must keep basic employment records. If you have hired a home care worker directly, you must keep the records. If you use an agency or fiscal intermediary, they may keep the records, as long as you can access the records if you need to. (see Hours Worked)

Basic records employers must keep for each employee include:

  1. Full name;
  2. Social security number;
  3.  Home address; (see Minimum Wage and Overtime)
  4. Hours worked each day and total hours worked each workweek;
  5.  Total cash wages paid each week to the employee by the employer, including any overtime pay; and
  6. Any weekly amounts claimed by the employer as part of wages for housing or food provided to the employee. (see Credit toward wages for housing and meals provided to employees)

NOTE: Records of wages paid (payroll records) must be kept by an employer for at least three years. Records used to calculate how much pay is owed (time cards, work and time schedules, and records of additions to or deductions from wages) should be kept for at least two years.

Additional recordkeeping requirements for live-in home care workers

An employer and a live-in domestic service employee may enter into an agreement regarding the employee’s meal, sleep, and other off-duty time. If you and your home care worker have one of these agreements, you must keep a copy of it.

An employer must also keep accurate records of time actually worked by the live-in home care worker, to confirm that it matches the agreement or show how it was different from the agreement. As with other records, a home care agency or another employer of your worker can create and keep these records, as long as you can access them. If you are keeping the records yourself, you may assign the employee the task of creating those records and submitting them to you, but you
are responsible for having them.

A tip for capturing work times

You can use any timekeeping method that works for you and that accurately tracks your home care worker’s work time each day. Many individuals and families who employ home care workers find that it works well to keep a calendar to record start, stop, and meal times each day. You may also use a timesheet like the sample pictured, or any other method, as long as it is accurate.

Weekly Time Sheet Sample
Employee Information
Full Name:
Social Security Number:
Home Address:
Day of
Week
Date Time
In
Time
Out
Hours
Worked
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Total
Hours

 

Consequences of not complying with the FLSA

If you are responsible for paying a home care worker at least the federal minimum wage and overtime and that worker does not receive all wages due, you are violating federal law. Your worker can sue you or file a complaint with the Department of Labor asking the Department to investigate. If it is found that you haven’t paid the full amount of wages owed under the FLSA, you will have to pay the missing amount—and possibly even double that amount—to your worker.