Close to 900,000 in-home caregivers had been losing out on overtime wages due to their “companionship” exemption. In August 2015, a US Circuit Court of Appeals in Washington, D.C. upheld new regulations for home health care aides.
It narrowed the definition of “companionship” and ensured third-party employers could no longer classify in-home workers as exempt. Minimum wage and overtime protections now extend to a great majority of home health aides.
There are four considerations for overtime wages:
1. Do you work for a third-party employer or a household?
Third-party companies, including home care agencies, can no longer claim the companionship exemption. This includes all home care staffing agencies.
If you work for a staffing agency and placed in the home of an individual, you are entitled to overtime.
Overtime must be paid for any hours over 40 worked in a week, at time-and-a-half. Households, families, and individuals that hire a home health aide directly is still allowed to claim the FLSA “companionship” or “live-in domestic service employee” exemption, as long as they do so legally.
Do you perform “companionship services”?
Prior to the new guidance on overtime pay for home health aides, an employer could take an overtime exemption for employees who performed “companionship services.” This exemption can still be taken by households, families, and individuals but third-party employers cannot.
The new rules have limited the definition of companionship, which has extended overtime protections to thousands of employees in the country.
Companionship is defined as “fellowship and protection for an elderly person or a person with an illness, injury, or disability who reuires assistance in caring for himself or herself.” This can be anywhere from basic socializing to playing games with them.
The Department of Labor considers the following activities examples of companionship:
- Conversation
- Reading
- Games
- Crafts
- Accompanying the person on walks
- Running errands
- Taking the person to appointments
- Attending social events with the person
The Department of Labor considers the following activities as care:
- Preparing meals
- Grooming
- Helping with finances
- Bathing
- Helping to take medications
- Moving
- Feeding
- Driving
- Dressing
- Light housework
- Toileting
- Arranging for medical care
It’s important to note, both care and companionship may overlap, but only if the care is provided alongside companionship.
It boils down to if you primary duties require you to engage in “social, physical and mental activities”– not doing laundry or making dinner. If you spend 20% or more of your workweek providing “care” for an individual, you are not exempt from the FLSA overtime provisions. You are entitled to higher wages for those extra hours.
3. Do you work for other members of the family?
Household work can only benefit an elderly person or person with a disability, according to the Department of Labor’s new rules. If you make meals for everyone in the house, or do everyone’s laundry, you are not exempt and are therefore entitled to overtime.
4. Are you a live-in domestic service worker?
Those who are considered a live-in domestic service worker are still considered exempt. If you live in your employers home, either permanently or for an extended period of time, you are not entitled to overtime wages. This covers home health aides and the following:
- Nannies
- Nurses
- Maids
- Waiters
- Cooks
- Babysitters
- Housekeepers
- Caretakers
- Chauffeurs
However, if you are a live-in domestic worker employed by a third-party employer, either solely or jointly, you are not exempt and must be paid overtime wages.
Is your employer following the new rules and regulations?
The new regulations set forth by the Department of Labor provides more home health aides with overtime pay. However, a staffing agency may not be paying correctly. Click here for a list of common overtime and wage violations.
There are many local and privately-owned home health agencies, as well as national agencies. Regardless of how small or large a staffing agency is, overtime pay applies to every single one of them. Even a home health aide who is salaried may be eligible for overtime.
The following are a list of some of the largest employers in the home health care industry:
- Addus HomeCare Corporation
- Almost Family
- Amedisys
- Apria Healthcare Group
- Arcadia
- BioScrip
- BrightStar Care
- Comfort Keepers
- Community Health Systems
- Gentiva Health Services
- Interim Healthcare
- Kindred At Home
- LCH Group
- Lincare Holdings
- Maxim Healthcare Services
- National Healthcare Corporation
- Protocare
- Visiting Angels
- Vitas Healthcare
Questions About a Home Health Aide Overtime Lawsuit? Contact a Johnson//Becker Lawyer for a Free Case Review.
If you feel that your employer is violating their requirement to pay you what you deserve, you should contact us for a free, no obligation case evaluation. We are actively filing new overtime lawsuits across the country and you may be entitled to financial compensation for your unpaid overtime wages.
We offer a Free Case Evaluation. Please contact us using the form below or by calling us at (800) 279-6386.
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