An employee recently posted this question to our wage and hour attorneys: “As an in-home caregiver, should I be getting paid overtime and/or minimum wage?”
The Fair Labor Standards Act (“FLSA”) requires that employers pay their employees at a rate equal to or greater than the federal minimum wage. Additionally, the FLSA requires employers to pay most employees time-and-a-half for any hours worked beyond 40 hours per week. The FLSA’s wage and hour requirements have long applied to “domestic service” employees such as cooks, butlers, maids, housekeepers, janitors, handymen, gardeners, and family chauffeurs, but traditionally have not applied to in-home caregivers who provide “companionship services” to the elderly or infirm.
Recently, on September 17, 2013, the U.S. Department of Labor (“DOL”), made changes to the FLSA’s minimum wage and overtime protections. The changes extend the FLSA’s protections to in-home caregivers by narrowing the companionship exception. Now, “companionship services” are defined as “services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves.” Additionally, “care” is defined as “household work … including meal preparation, bed making, clothes washing and other similar personal services.”
According to the new rule, if an individual spends over 20 percent of his or her time in any given week on care giving activities, the companionship exemption no longer applies and the employee is entitled to minimum wage and overtime pay. Similarly, if performance of household work primarily benefits other members of the household, the employee is entitled to the FLSA’s protections, including minimum wage and overtime pay. The recent changes target the exploitation of employees who agree to provide companionship services and then are asked to take on additional chores such as washing dishes or doing laundry. Previously, an employee could be required to perform these additional tasks without the benefit of minimum wage or overtime pay because the employee was not considered a maid or other type of traditionally protected worker.
The new regulation does not go into effect until January 1, 2015. The delay is designed to permit families who rely on in-home caregivers to prepare for the changes and potential added expense. According to the DOL, the change will affect nearly 2 million workers and their respective clients and employers.
Employers who violate the FLSA are liable for any back wages owed to the affected workers, plus an additional equal amount as liquidated damages. But with all of the factors to consider, it is not always easy to know whether your position is exempt or non-exempt from the FLSA’s wage and hour requirements. If you are concerned about whether you are entitled to the benefits and protections provided by the FLSA and other similar laws, speak with an experienced employment attorney today.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Or maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at this wage and hour law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm or any individual attorney.