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Do I need to pay my home health aide or housekeeper minimum wage? What about overtime?

There are two basic points that must be understood in order to properly interpret the minimum wage and overtime rules as they apply to elder care workers.

• Domestic workers by definition are "non-exempt" workers under the Fair Labor Standards Act (FLSA).
• Most eldercare workers fall under the FLSA's coverages. All housekeepers and maids fall under the FLSA. Credentialed eldercare workers such as RNs and LPNs are specifically excluded.
• Some eldercare workers fall under the FLSA's "companionship exemption" provision. More on this below.

Apologies in advance to our readers, there is no simple yes/no answer to this question that covers all circumstances.

Domestic employees have been covered by the Fair Labor Standards Act since 1974 and must be paid at least the Federal minimum wage, currently $5.85 (effective 7/24/07). You are required to pay a domestic employee who lives out overtime (for hours above 40 in a week). Overtime is one and one-half times the normal hourly rate. Live-in employees must be paid for every hour they work but are not automatically entitled to the overtime differential.

There are limited exemptions from minimum wage and overtime rules for "companionship services" in the FLSA. The Department of Labor cautions that ALL of the conditions below must be present to constitute "companionship services."

Companionship Services Defined: "Companionship services" means services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves. Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services. General household work is also included, as long as it does not exceed 20 percent of the total weekly hours worked by the companion. Where this 20 percent limitation is exceeded, the employee must be paid for all hours in compliance with the minimum wage and overtime requirements of the FLSA." (See  DOL FACT SHEET: Companionship Exemptions.)

As a practical matter, the come-and-go caregiver is not likely to accept a position that does not pay a market rate, which is generally in excess of any minimum wage. Live-in caregivers with very limited caregiving duties are most likely to fit the companionship exemption and be attracted to the position that includes room/board and a weekly stipend. These caregivers are generally free to pursue other, outside employment during some or all of the week.

According to a Los Angeles Times report, many states -- including Colorado, Illinois, Kansas, Michigan, Minnesota, Nevada, Pennsylvania, Washington and Wisconsin -- have separate minimum wage and overtime laws that apply to home care workers including companionship services. (Los Angeles Times, 6/12/2007). The FLSA is the floor - state regulations may broaden the employer's obligations. The stricter of the competing standards apply.

The DOL further states that "the term "companionship services" does not include services performed by trained personnel such as registered or practical nurses. Registered nurses are exempt from the FLSA's wage requirements where their time is spent in the performance of the duties of a nurse and are paid on a salary or a "fee basis" as defined by Regulations, 29 CFR Part 541." (See  DOL FACT SHEET: Companionship Exemptions.) Translation: Individuals who are trained personnel with licensing such as RNs or LPNs are 'exempt' from the FLSA and are not considered 'domestic employees' at all. They are free to negotiate a wage that is paid on a fee basis, salary, or hourly at their discretion. Depending on circumstances, they may still be considered your employee, simply not under the classification of 'domestic employment' as discussed in the FLSA. Most RNs and LPNs will be considered independent contractors, and as such your obligation is to issue a Form 1099 at year end documenting the fees you have paid the individual contractors.

Working hours are defined as all hours on duty, including meal time and sleep time if the employee is required to remain at the premises. In general, hours worked includes all time that the employee is required to be at the employer's home and all time that the employee is required to be 'on call' in the course of his/her duties.

(There are many states which enforce higher minimum wages. Where Federal and state law have different minimum wage rates, the higher standard applies.)

Minimum wage and overtime rules for domestic service employment are specifically governed by the  Fair Labor Standards Act. Please familiarize yourself with these rules if you are considering a pay rate that does not meet the FLSA standards articulated above.

IMPORTANT Elder Care Notice: in Coke v. Long Island Care (22-Jul-2004) the Federal Court of Appeals ruled that the FLSA regulations (29 C.F.R. § 552.109(a)) - which specifically apply to "companionship services" provided by other than family members of those receiving the services - are internally inconsistent and not owed the high level of deference usually granted federal regulations. The court found that "companionship services" exemption for home health-care providers should not apply to non-related employees because the intention of the regulation was to exempt companions, not individuals employed to assist with housekeeping and the activities of daily living.

The US Supreme Court overturned the appellate court June 11, 2007 (Long Island Care At Home, Ltd., et al. v. Evelyn Coke, No. 06-593, U.S. Sup.) and upheld the limited companionship exemption. The Court's opinion referred the matter to Congress for a legislative remedy.

There were several legislative attempts to expand the FSLA coverage to 'companions for the elderly and infirm' during the Clinton administration. It is unclear whether the current Congress pre-occupied with the Iraq war and immigration reform issues will take this matter up.

 Minimum Wage by State

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