Best Ohio Overtime Attorneys Answer: Do home health care aides have overtime rights? Should domestic workers and companionship services employees be paid time and half for working more than 40 hours per week? What should I do if my boss says that the company that I work for does not pay overtime but make me work 50 hours per week?
As our wage and hour attorneys have previously blogged about, employers are required to pay minimum wage and overtime under the Fair Labor Standards Act (“FLSA“). (See How Do I Find The Right Attorney For My Overtime Claim?; and Can I Have More Than One Employer For My Wage & Hour Claims?). As you may know from reading some of our past wage and hour blogs, the FLSA is the federal law which establishes minimum wage and overtime requirements. Under the FLSA, an employee who is covered by the Act and who works over 40 hours per week is entitled to overtime pay at a rate of at least one-and-a-half times their standard hourly rate. The FLSA also gives us the federal minimum wage of $7.25 per hour for employees. (See What Is Minimum Wage In Ohio For 2016? – Call The Right Attorney).
The FLSA’s wage and hour requirements have long applied to “domestic service” employees such as in-home 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. (See Do In-Home Caregivers Have Minimum Wage & Overtime Rights?). Department of Labor (“DOL“) previously interpreted “companionship services” to include nearly all workers who provide services to elderly, disabled or infirm individuals in the individual’s home, including most home health care aides. However, effective January 1, 2015, the DOL, via the so-called Final Rule, changed the regulations governing “companionship services” to narrowly define the services provided and thus allow home health aides to be paid overtime. The rule was challenged by Home Health Care agency groups but was upheld last August by United States Federal District Court of Appeals for the District of Columbia. Agency groups appealed the decision to the Supreme Court of the United States, who deiced in June 2016 not to hear the appeal. Therefore the new definition now stands and home health care aids are now entitled to overtime.
The DOL now defines “companionship services” as the “the provision of fellowship and protection” to elderly or infirm clients. Those who provide companionship services may also provide some help with activities of daily living such as dressing, grooming, bathing, feeding or toileting, and instrumental activities of daily living, “which are tasks that enable a person to live independently at home (such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care),” so long as these activities take up less than twenty percent of the person’s time. And companionship services do not include providing medically related services to the client
Home health care aides traditionally help patients with activities of daily living as well as instrumental activities of daily living. Home health care aides allow clients to live safely in their own homes and help provide the assistance to live successfully. As a home health care aide, if you spend most of your time helping your client with activities of daily living or instrumental activities of daily living, including driving your client to the store, you are entitled to overtime compensation.
In addition, while many home health care aides are employed and paid directly by the client or family members of the client, most home health care aides work through an agency. If you work through an agency it is important to note that 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.” That means if you work for an agency they owe you minimum wage and overtime regardless of whether or not you spend less than twenty percent of your time on activities of daily living or instrumental activities of daily living.
Your hours worked could even include “time spent traveling between multiple individuals receiving services,” so long as “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.”
If you are a home health care aide and wondering whether your employer owes you overtime pay, ask yourself (1) who is my employer and (2) how do I spend my time helping the client? If you work for an agency then you automatically qualify for overtime, regardless of how you spend your time. If you do not work for a third party agency then ask yourself: how much of my time is spent on activities of daily living or instrumental activities of daily living? If it is more than twenty percent and you are not receiving overtime, you need the best overtime and wage attorneys to fight for your rights.
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 Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. 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 the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the 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, Brian Spitz, or any individual attorney.