Home Health Aide Overtime: A Guide To The FLSA’s New Rules

For decades, a small clause in the Fair Labor Standards Act (FLSA) allowed employers to classify home health aides as “exempt” from the federal law’s overtime protections.

Nearly 900,000 in-home caregivers were losing out on overtime wages because they performed “companionship services” for the elderly and people with disabilities.

New Rules Give Home Health Aides Right To Overtime

But the “companionship” loophole is now closed. After a lengthy legal battle, the Department of Labor’s decision to extend minimum wage and overtime protections to the vast majority of home health aides has gone into effect.

Now it’s a matter of protecting home health aide rights.

Four Steps To Overtime Wages

Does the change in home health aide overtime affect you? Here’s our four step guide to the DOL’s new rules:

1. Do I Work For A Third-Party Employer Or A Household?

Third-party employers are no longer allowed to classify home health aides as “exempt” from the FLSA’s overtime provisions. This rule applies to all home care staffing agencies.

If you work for a staffing agency that places you in the homes of individuals, you are entitled to overtime wages.

Overtime must be paid for any hours worked over 40 in a week, at time-and-a-half. Learn more about the overtime you’re entitled to here.

Individuals, families and households that hire home health aides directly are still allowed to claim the FLSA’s “companionship” or “live-in domestic service employee” exemptions, as long as they do so appropriately.

2. Do I Perform “Companionship Services”?

Before the DOL’s new guidance, employers could take an overtime exemption for workers who performed so-called “companionship services.” Individuals, families and households can still take this exemption; third-party employers can’t.

But the new rules limit companionship’s definition, effectively expanding overtime protections to thousands of domestic employees.

Companionship Or Care?

“Companionship” means providing “fellowship and protection for an elderly person or [a] person with an illness, injury or disability who requires assistance in caring for himself or herself.” This can be as basic as socializing with someone or playing games with them. Here are the activities the Department of Labor uses to illustrate “companionship”:

• conversation
• reading
• games
• crafts
• accompanying the person on walks
• running errands
• taking the person to appointments
• attending social events with the person

In contrast to “companionship,” the DOL defines “care.” Caring for someone in this context is helping them perform the activities of daily living, like:

Care and companionship can come together, but only if the care is provided in conjunction with your companionship.

For the companionship exemption to apply, your primary duties must be engaging a person in “social, physical and mental activities,” not doing their laundry or making their meals.

How Much Care Is Too Much?

If you spend more than 20% of your workweek “caring” for an individual, you are not exempt from the FLSA’s overtime provisions. You are entitled to higher wages for your extra hours.

3. Do I Work For Other Members Of The Family?

Under the DOL’s new rules, household work can only benefit the elderly person or person with a disability. If you make meals for other people in the house, or do everybody’s laundry, you are not exempt. That means you’re entitled to overtime.

4. Am I A Live-In Domestic Service Worker?

People who can be classified as “live-in domestic service workers” are still exempt. If you live in your employer’s home, either permanently or for an extended period of time, you may not be entitled to overtime wages. This exemption covers home health aides, as well as:

• nannies
• nurses
• maids
• waiters
• cooks
• babysitters
• housekeepers
• caretakers
• chauffeurs

But live-in domestic workers who are employed by a third-party employer, either solely or jointly, are not exempt and must be paid overtime wages.

Is Your Employer Following The New Rules?

With the Department of Labor’s new regulations, most home health aides are now entitled to overtime pay. But whether or not staffing agencies have started paying correctly is still unclear.

There are thousands of local, privately-owned home health agencies, and dozens of major national agencies. The expansion of overtime pay applies to every staffing agency equally, no matter how small or large. Even home health aides who make a salary may be eligible for overtime now.

Here’s an incomplete list of America’s largest employers in the home health care industry:

You deserve to be paid fairly for your hard work. We can help. If you think you’re employer isn’t complying with the changes to the FLSA, contact our wage and hour attorneys today for a free consultation.