Knowing your obligations when hiring home care workers is critical. Complying with the Fair Labor Standards Act is required. Even if you use and agency, you may become personally liable for overtime or minimum wage violations.
Most home care workers are actually employees, not independent contractors. Some of the factors that are considered when determining whether a worker is an employee versus and independent contractor is if you set the worker’s schedule, tell the worker what tasks to do or when to do them, and/or can hire or fire the worker. These indicia are present in most home care settings and mean that the worker is an employee.
Hiring a home health worker through an agency does not negate your obligations to ensure compliance with the Fair Labor Standards Act. In most cases, for purposes of the Fair Labor Standards Act, you are considered a joint employer with the agency. While the agency may be responsible for payroll taxes and compliance with the Fair Labor Standards Act, you are jointly responsible if the worker does not receive appropriate overtime or works extra hours for an agreed flat pay rate (that reduces his or her pay to below minimum wage).
You may be able to benefit from the “Companion Services Exemption.” This narrow exemption may apply if the worker provides mostly fellowship and protection rather than personal care. Limitations on this exemption also include not performing household task such as cooking or laundry. If all of the criteria for the Companion Services Exemption are met, minimum wage and overtime requirements may not apply.
- To be a “live-in” home care worker, the employee must either live at the consumer’s home full-time (that is, have no other home of their own), or spend at least 120 hours or five consecutive days or nights in the consumer’s home per week.
- A live-in home care worker could be a family member of the consumer or a provider who moved into a consumer’s home as part of a shared living arrangement.
- Workers who come to a consumer’s home for 24-hour shifts but are not present for at least 120 hours each week or for five consecutive days or nights are not live-in workers.
Unfortunately, we have seen first hand what trouble failure to comply with employment laws can cause a client. We have had clients blackmailed by caregivers who realize their rights and threaten to report. It is far better to be informed.
For more information, please see The Department of Labor’s Homecare Guide.