“Home-health worker” is the fastest growing employment segment in the United States. This trend will only accelerate as baby boomers age and need assistance to remain in their homes. In 2013, there are two million home-health workers. By 2020, there will be 3.2 million.
Under new final rules issued by the U.S. Department of Labor in September 2013, these home-health workers will soon enjoy expanded protections under the law.
Beginning in January 2015, private employers will be required to pay minimum wage and overtime to most home-health workers who provide care for the sick, disabled or elderly.
What Are Companionship Services?
The Fair Labor Standards Act provides minimum wage and overtime protections for workers. In 1974, Congress expanded the FLSA to cover workers who perform “domestic service.” However, it exempted certain domestic-service workers from its provisions, such as casual baby sitters and domestic service workers who provide “companionship services” for the elderly or persons with an illness or disability.
For nearly 40 years, this law has been interpreted as exempting all home-health aides.
Under the new rule, home-health aides who provide “care” are no longer exempted and must receive the minimum wage and overtime. Aides who provide only “fellowship” and “protection” remain exempt.
Those Who Provide “Care” Are Covered
The new rule defines “care” as assistance with the activities of daily living, such as dressing, grooming, feeding, bathing, toileting and transferring (like from bed to chair). Also covered are tasks that enable a person to live independently at home. These include meal preparation, driving, light housework, managing finances, assistance with the physical taking of medication and arranging for medical care.
Generally, “care” includes an element of training and skill, and longer hours.
Those Who Provide “Fellowship” and “Protection” Still Exempted
“Fellowship” is defined as engaging an elderly, ill, injured or disabled person in social, physical and mental activities such as conversation, reading, games and crafts, or accompaniment on walks, on errands, to appointments or to social events. “Protection” is defined as simply being present with the person inside and outside the home to monitor his or her safety and well-being.
Neither fellowship nor protection activities are subject to the new rule requiring minimum wage, overtime and record-keeping. If the kinds of activities are mixed, and “card” exceeds 20 percent of the time worked, then the new rule applies and minimum wage and overtime must be paid.
Rules Slightly Different for Live-Ins
Live-in domestic service workers who reside in the employer’s home and are employed by an individual, family or household must pay at least minimum wage, but are exempt from overtime pay. Employers must keep track of all hours an employee is working.
Employers Must Plan
Home-health agencies should not wait until the last minute to re-classify their employees from exempt to non-exempt status. They must review current compensation structures, implement new timekeeping systems, reprogram payroll systems, adopt new pay policies, and train the newly non-exempt employees and their managers on the new policies and procedures.
Call an Employment Attorney
The issues surrounding minimum wages, overtime and record-keeping for home-health providers can be complicated. Plus, the facts of each case and the laws in each state are unique. This article provides a brief, general introduction to the topic. It is not legal advice. For more detailed information about your specific situation, please contact an employment lawyer.