Similar lawsuits are filed throughout the country on a regular basis, highlighting the fact that people who work in their employers’ homes are often isolated and vulnerable to wage theft. Walsh v. Getch, Inc. is not a case of inadvertent individual failure, however. The scheme perpetrated by Getch, Inc. was systemic law breaking.No overtime
Investigators from the DOL’s Wage and Hour Division found that Getch violated the FLSA by paying a flat daily rate to workers who provided seniors with live-in assistance for daily living activities. The employees worked both day shifts and live-in shifts at clients’ homes. For live-in shifts, they were compensated for 16 hours a day, excluding an eight-hour sleep period. Getch paid employees working live-in shifts different hourly rates depending upon the number of hours worked in a workweek. The more hours an employee worked over 40 in a workweek, the lower the hourly rate the employee would receive. They were paid only a flat daily rate for live-in shifts, with no overtime premium, as required by law.
Double books
Then, to create the appearance that overtime had been paid, Getch altered employees’ pay records. The company modified employees’ hourly rates to match that flat daily rate while creating the appearance of paying an overtime premium. The business maintained internal documents specifying the hourly rate an employee would be paid based on a sliding scale of how many hours that employee worked in a week.
Getch backed into these rates by first deciding the hourly rate of pay that the employee should receive equivalent to the flat daily rate employees were promised. The company then reduced the employee’s putative rate of pay as the employee worked more overtime hours so that, once a half-time premium was added, the employee would receive only the targeted hourly rate of pay.
By using these sliding scale pay rates, Getch avoided paying the half-time premium for overtime hours as required by the FLSA. It is difficult to speculate on motivation, but Getch may have assumed that the workers would not have known about their legal rights or would not have complained for fear of retaliation.
FLSA
An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay. The law, with some exceptions, requires bonus payments to be included as part of an employee's regular rate of pay in computing overtime.
Nationwide problem
Wage theft is rampant in many industries, including in health care. A 2009 study found that 12 percent of home health aides make less than the minimum wage. Many others are paid a fixed sum for a variable number of hours, which often leads to minimum wage and overtime violations.
Many workers never recover wages stolen from them by employers because they do not have access to legal representation, are worried about retaliation, or do not know their employers are stealing from them. Wage theft costs health care workers millions of dollars per year in lost income.
DOL initiative
In 2021, the DOL launched an initiative to improve compliance with the FLSA within the home healthcare industry. Since then, the Wage and Hour Division has conducted more than 1,600 investigations and identified violations in 80 percent of these reviews. Among the most common violations is not paying overtime or federal minimum wage.
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In November 2022, the DOL reported that it had recovered $1.2 million in back wages for 600 home health care workers in Texas and Louisiana. The home healthcare businesses named in that lawsuit were:
- Ace Primary Homecare Inc. in Pharr, Texas;
- Guardian Angels Care Services Inc. in Alexandria, Louisiana;
- Fernandez Care Assistance LLC in San Juan, Texas; and
- Association for the Advancement of Mexican Americans in Laredo, Texas.