Monday, February 1, 2016
Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?" For many years, I would get a blank stare or, perhaps, "what exactly is elder law?" Now, more frequently the response is "do you have time for a quick question?" (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....")
I'm hearing more questions about home care workers. One frequent question is about overtime pay, and the type of employment definitely matters. The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.
Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight. Family members will tell me "we just want someone there in case something happens." That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services. There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.
In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation. See Home Care Association of America v. Weil. Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.
As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection." "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)
DOL provides this example:
Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.
For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city!