Home Health Worker Overtime: Understanding the Laws

New York, NYThe world of home caregivers and home health workers often involves long hours and low pay. In fact, a recent study conducted by the National Domestic Workers Alliance (NDWA) found that 23 percent of domestic workers??"including home caregivers??"make less than minimum wage. Although federal law does not protect the rights of all home caregivers, some states have laws that do protect those rights and workers should look into state laws to determine if they are owed minimum wage or overtime.

The Fair Labor Standards Act (FLSA) determines minimum wage and overtime protection based on the services provided by the home caregiver. Workers who provide companionship services, such as services that provide for the care, fellowship and protection of people who cannot take care of themselves, are not entitled to minimum wage or overtime protection. So, home caregivers who provide services such as meal preparation, bed making and clothes washing are not, under federal law, entitled to minimum wage or overtime.

But there are exceptions to this. First, anyone who spends more than 20 percent of her weekly hours providing general household work is entitled to minimum wage and overtime protection under the Fair Labor Standards Act. This means that employees must keep track of their hours and job duties to ensure that if they are not paid minimum wage or overtime, they also do not spend more than 20 percent of their time doing general housekeeping.

Beyond that, however, many states have individual laws that may not exempt caregivers from overtime pay or minimum wage requirements. For example, New York has overtime and hourly wage protections for home caregivers. Other states that provide minimum wage and overtime for home health workers as of December 2011, according to NPR (12/16/11), include Colorado, Washington, Michigan and Pennsylvania. States that protect minimum wage but not overtime rights include Ohio, Nebraska and Arizona.

Not all states protect the rights of home health workers. Currently, the US government is considering changes to the Fair Labor Standards Act to allow home attendants and home care aides the same protections that many other employees enjoy. Proposed changes include excluding third-party employers (where an agency hires the caregiver to work in someone's home) from any exemptions, and defining tasks that may be performed by an exempt worker.

Until those changes are made, however, home health workers, caregivers and aides will have to check into their individual state law to see if their rights are protected.