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We Count on Home Care

We Count on Home Care

Domestic Service Final Rule Frequently Asked Questions (FAQs)

Employment Test Joint Employment




Q. What if the worker is sub-contracted by an agency, is not an "employee?"

A. Thank you for your question. The requirements of the Fair Labor Standards Act (FLSA) generally do not apply unless there is an "employment relationship." For more information on determining whether an employment relationship exists under the FLSA, please see Fact Sheet 13, available at http://www.dol.gov/whd/regs/compliance/whdfs13.pdf

Q. If we qualify as a third party employer then we will commence paying OT 1/1/15 and no other test or rules apply, is that accurate?

A. Yes, effective January 1, 2015, third party employers may not claim the companionship services exemption from minimum wage and overtime pay for direct care workers, regardless of their job duties. And effective the same day, third party employers may no longer claim the overtime pay exemption for live-in domestic service workers. Thanks for your question.

Q. Even if a third party employer is considered to be a joint employer with a consumer, are they still prevented from being eligible for any overtime exemption?

A. Thanks for your question. Yes. Where a worker is performing duties that fit within the definition of companionship services, the consumer (or his/her family or household) may claim the companionship service exemption, but any third party employer of that worker may not. This means that the third party employer is responsible for ensuring that the worker is paid in compliance with the Fair Labor Standards Act. The same applies for the overtime exemption for live-in domestic service workers.

Q. Companionship Services Exemption states that it can be used only if the worker is SOLELY employed by the consumer. What if that worker is employed during some days by a 3rd party and some days directly by the consumer ?

A. Thanks for your question. Under the revised regulations, the exemption is only available to the individual, family, or household solely or jointly employing the worker, and only if the companionship services duties test is met.

Third party employers of direct care workers (such as home care staffing agencies) are not permitted to claim the exemption for companionship services. Accordingly, third party employers must pay their workers the Federal minimum wage for all hours worked and overtime pay at time and one-half of the regular rate of pay for all hours worked over 40 in a workweek.

For more information on the companionship exemption, please see Fact Sheet 79a, available at: http://www.dol.gov/whd/regs/compliance/whdfs79a.htm.

Q. I didn't get an answer to my question about sole employer. If the family or consumer hires and pays the worker some days and a 3rd party pays them other days, can the family use the exemption during the days the worker is working for them?

A. Under the Final Rule, effective 01/01/15, a family may claim the exemption if the companionship services duties test is met and the worker is employed in a private home.

Q. Please explain how the companionship exemption changes apply if there is joint employment? How can the change apply to the third party but not the consumer when the aide is paid from one entity?

A. Thanks for your question. Where a worker is performing duties that fit within the definition of companionship services, the consumer (or his/her family or household) may claim the companionship services exemption, but any third party employer of that worker may not. This means that the third party employer is responsible for ensuring that the worker is paid in compliance with the Fair Labor Standards Act.

Q. Does this also apply to independent contractors working in the home through a 3rd party employer/agency?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. But a worker who is an employee of a 3rd party employer is not an independent contractor. Please see Fact Sheet # 13, Employment Relationship Under the Fair Labor Standards Act, available at http://www.dol.gov/whd/regs/compliance/whdfs13.pdf, for more information.

Q. An independent contractor who receives a 1099 form at the end of the tax year works 43 hours per week as she provides services to different consumers. Is she entitled to overtime pay?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. Please see Fact Sheet # 13, Employment Relationship Under the Fair Labor Standards Act available at

http://www.dol.gov/whd/regs/compliance/whdfs13.pdf, for more information. The fact that a worker receives a 1099 form is not determinative of whether an employer-employee relationship exists.

Q. Do independent contractors count as being employed by the home care agency even though they are not considered employees by the agency?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. To determine whether the worker is an independent contractor or an employee, factors to consider include:

1) The extent to which the services rendered are an integral part of the principal's business.
2) The permanency of the relationship.
3) The amount of the alleged contractor's investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor's opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization.

For additional information related to Employment Relationship, please review Fact Sheet 13 at: http://www.dol.gov/whd/regs/compliance/whdfs13.pdf .

Q. For independent contractors, if the contractor arranges for respite staff for the clients they serve, can they claim the exemptions?

A. Thanks for the question. The FLSA applies to employers. The FLSA defines "employer" and "employee" broadly. See Fact Sheet # 13: Employment Relationship Under the Fair Labor Standards Act (FLSA) for more information. Under the Fair Labor Standards Act, determinations about whether an entity has an employment relationship with a worker are made by examining all the facts in a particular case and assessing the economic realities of the work relationship. Please review the Frequently Asked Questions at www.dol.gov/whd/homecare/ for more information on the factors the Department examines in determining whether an employment relationship exists.

Keep in mind that a single individual may be considered an employee of more than one employer under the FLSA. Certain entities may provide referral services, perform payroll functions, or process Medicaid reimbursement payments but not act as the employer of a worker.

Q. Could home care providers be independent contractors instead of employees?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. To determine whether the worker is an independent contractor or an employee, factors to consider include:

1) The extent to which the services rendered are an integral part of the principal's business.
2) The permanency of the relationship.
3) The amount of the alleged contractor's investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor's opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization.

For additional information related to Employment Relationship, please review Fact Sheet 13 at: http://www.dol.gov/whd/regs/compliance/whdfs13.pdf .

Q. If the direct care worker is an independent contractor who actually performs the service is overtime pay still required? Is the overtime pay part of the contract between the consumer and the independent direct care worker?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. Please see Fact Sheet # 13, Employment Relationship Under the Fair Labor Standards Act available at

http://www.dol.gov/whd/regs/compliance/whdfs13.pdf, for more information. The fact that a worker is referred to as an independent contractor is not determinative of whether an employer-employee relationship exists.

Domestic service workers who reside in the employer's home and are employed by an individual, family, or household are exempt from the overtime pay requirement, although they must be paid at least the Federal minimum wage for all hours worked. Similarly, a domestic service worker who performs duties that fit within the definition of companionship services, if employed solely by the consumer (or his/her family or household) would be exempt by the companionship services exemption. Third party employers, such as home care agencies, may not claim the overtime exemption for live-in domestic service workers, or the companionship services exemption, and must pay such workers at least the Federal minimum wage for all hours worked and overtime pay at one and a half times the regular rate of pay for all hours worked over 40 in a workweek. (See Fact Sheet #79E: Joint Employment in Domestic Service Employment Under the Fair Labor Standards Act (FLSA) for information about joint employment.)

Q. Under what circumstances would a direct care worker be considered self-employed and therefore not subject to FLSA requirements?

A. Workers who are independent contractors, meaning they are in business for themselves rather than economically dependent on an employer, do not have to be paid according to the requirements of the Fair Labor Standards Act. Please see Fact Sheet # 13, Employment Relationship Under the Fair Labor Standards Act available at

http://www.dol.gov/whd/regs/compliance/whdfs13.pdf, for more information.

Q. How do these rules apply to Independent Contractors?

A. The FLSA requirements apply when an employee-employer relationship exists under the Act. Fact Sheet 13 (available at http://www.dol.gov/whd/regs/compliance/whdfs13.pdf) provides further information about determining when an employment relationship exists.



Family Caregivers




Q. If a person who is a worker becomes a family member (for example by marrying the individual with a disability), does that relationship not count as a family member because it wasn't pre-existing?

A. Thanks for your question. If a person being assisted and caregiver get married during the course of an employment relationship, then that would count as a new familial relationship. You can find more information about a family member who is also an employee starting on page 60487 in the PDF of the Final Rule we have on the homecare website. Also see Fact Sheet #79F on Paid Family or Household Members.

Q. Using family member providers to deliver services to the individual in their home. The service plan states 10 hours a week of a service that is paid for. The family put in more hours than the 10 they are paid for. How does this rule apply in this situation?

A. The Department recognizes the significance and unique nature of paid family and household caregiving in certain Medicaid-funded and certain other publicly funded programs. In determining when someone is employed, the Department has determined that the FLSA does not necessarily require that once a family or household member is paid to provide some home care services, all care provided by that family or household member is part of the employment relationship. In such programs, the Department will not consider a family or household member with a pre-existing close, personal relationship with the consumer to be employed beyond a written agreement developed with the involvement and approval of the program and the consumer (or the consumer's representative), usually called a plan of care, that reasonably defines and limits the hours for which paid home care services will be provided. The determination of whether such an agreement is reasonable includes consideration of whether it would have included the same number of paid hours if the care provider had not been a family or household member of the consumer.

Q. If a needs assessment on an individual (such as a Supports Intensity Scale evaluation) indicates that a person needs "24-7" supervision, and a Family member is hired to provide services for 40 hours per week, would a "reasonable plan" need to include paid staffing for the other 128 hours per week in order to be considered "reasonable" according to the Final Rule? Or, could the family member's "natural supports" account for a portion of that remaining 128 hours?

A. The Department recognizes the significance and unique nature of paid family and household caregiving in certain Medicaid-funded and certain other publicly funded programs. In determining when someone is employed, the Department has determined that the FLSA does not necessarily require that once a family or household member is paid to provide some home care services, all care provided by that family or household member is part of the employment relationship. In such programs, the Department will not consider a family or household member with a pre-existing close, personal relationship with the consumer to be employed beyond a written agreement developed with the involvement and approval of the program and the consumer (or the consumer's representative), usually called a plan of care, that reasonably defines and limits the hours for which paid home care services will be provided. The determination of whether such an agreement is reasonable includes consideration of whether it would have included the same number of paid hours if the care provider had not been a family or household member of the consumer. In your example, a family member's "natural supports" could account for a portion of the remaining 128 hours provided that the agreement is reasonable as defined here.

Q. What if a family member does not want to take on the burden of becoming an employer? Can they hire an agency to do that and still receive the exemption?

A. Under the Final Rule, an individual, family, or household who employs a worker providing companionship services to an elderly person or person with illness, injury, or disability may claim the companionship services exemption from the Act's minimum wage and overtime pay provisions if the employee meets the "duties test." Similarly, an individual, family, or household who employs a worker who resides on the employer's premises to provide domestic service may claim the live-in domestic service employee overtime pay exemption under the Final Rule if the employee meets the residency requirements. See Fact Sheet: Application of the Fair Labor Standards Act to Domestic Service; Final Rule for additional information.

Third party employers are not entitled to claim either the companionship services or live-in domestic service employee exemptions under this Final Rule.

Q. What if a family member is paid on a piece work per visit basis and not per hour. How would these rulings apply?

A. A family member entitled to the protections of the Fair Labor Standards Act can be paid a piece rate, hourly rate or on a salary basis as long as they are paid at least the current Federal minimum wage for all hours worked within the employment relationship and, if applicable, the overtime premium for any hours worked in excess of 40 in a workweek.



Multiple Consumers, Multiple Employers




Q. What if one worker from a private agency is working with a consumer during a 8 hour shift, but the same worker is also working another agency during the day. Would this still be possible without any overtime or not?

A. For covered, nonexempt employees, the FLSA requires an employer to provide overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek. An employee who works for two separate and distinct employers (not joint employers) has a right to overtime pay after 40 hours worked in a workweek for each employer separately. It is possible for an employee to work for two separate and distinct employers during the same workweek for a combined total of more than 40 hours without being entitled to overtime pay.

Q. Is the 40 hour week considered for the hours worked overall by the caregiver or is the 40 hours combined if the caregiver is working for multiple consumers/employers?

A. Thanks for your question. If a worker is jointly employed by multiple employers, all hours worked in the workweek would be combined for payment. However, if the worker is separately employed by different employers and joint employment does not exist, the hours worked by different employers would not be combined in a single workweek. For further information on joint employment under the FLSA, please refer to fact sheet 79e: http://www.dol.gov/whd/regs/compliance/whdfs79e.htm.

Q. if a provider works for a Medicaid client and gets an hourly rate is it okay for the same provider to work for a private client and receive an sift wages/salary under the current laws?

A. Thanks for the question. If, in your example, the Medicaid client and the other private client don't share a common third party employer and the two clients are independent of each other, then if the worker is covered, he or she may be paid using different methods as long as, in each workweek, he or she receives the equivalent of $7.25/hour from each employer for the hours worked for that employer, and proper overtime for hours worked above 40 in any workweek for a particular employer.

Besides the two clients, the worker might also be employed by the same third party employer, like a home care agency or a state agency. If so, then that third party employer would be required to pay at least the federal minimum wage, plus proper overtime payment for hours worked above 40 in any workweek.



Hours Worked




Q. How will sleep time work? If a direct care staff works over 24 hours and sleeps for 8 hours, can we as an agency choose to pay these workers at a straight time rate while they are sleeping rather than providing no compensation if we choose too?

A. If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted.

There are different rules for employees who live in the household where the services are provided. See the questions and answers regarding rules that apply to live-in domestic service employees. If there is no express or implied agreement with respect to how an employee will be paid for sleep time, all hours spent on duty, including time spent sleeping, must be counted as work time.

An employer may pay an employee more than is required by the Fair Labor Standards Act. However, you may wish to review the regular rate of pay calculation requirements as it may affect the regular rate and impact the potential number of overtime hours by your employee.

Q. Can a homecare agency deduct any amount of time for "sleep time" of their employee?

A. The Final Rule did not change the Fair Labor Standards Act sleep time rules. Whether sleep time can be excluded from hours worked depends on the circumstances. Please see Fact Sheet #79D: Hours Worked Applicable to Domestic Service Employment under the Fair Labor Standards Act.

Q. Please advise if a Home Health aide usually sleeps all night from 10PM to 8 am but gets up 1 rare night to assist the client is the employee paid for the 15 min they provided assistance?

A. Yes, interruptions to sleep during which the worker performs tasks on behalf the person must always be paid as work time. If the interruptions are so frequent that the employee cannot get at least five hours of sleep during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.

Q. Under hours worked; if the consumer goes to the worker's home for the weekend and sleeps 8 hours at night, is the worker due 16 hours or 24 hours paid time?

A. Where an employee is required to be on duty for 24 hours or more, even if the worker is not a live-in domestic service employee, the employer and the employee may agree to exclude a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted nights sleep.

Please review Fact Sheet 79 D for Hours Worked Applicable to Domestic Service Employment at http://www.dol.gov/whd/regs/compliance/whdfs79d.htm .

Q. What about 24-hr shifts by a worker not living permanently or for an extended period of time at the home but instead 1-4 days per week? Can we still deduct sleep time from worked hours?

A. Where an employee is required to be on duty for 24 hours or more, even if the worker is not a live-in domestic service employee, the employer and the employee may agree to exclude a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted nights sleep.

Q. As an agency providing live-in assistance where the caregiver has 1) less than 20% of the time providing ADL assistance and is there 5 contiguous days and gets 8 hours uninterrupted sleep every night, am I able to allow my clients the "sleep" exemption? The terms were confusing and I was not sure if my clients qualified because the agency is obviously a non-family employer.

A. An employee who resides in the employer's home permanently or for extended periods of time need not be paid for all of the time spent at the home. When a live-in employee engages in normal personal activities such as eating, sleeping, entertaining, and other periods of complete freedom from all duties, he or she does not have to be paid for that time. For a live-in domestic service employee, such as a live-in roommate, the employer and employee may agree to not pay for time spent during bona fide meal periods, sleep periods, and off-duty time. If the meal periods, sleep time, or other periods of free time are interrupted by a call to duty, the interruption must be counted as hours worked. In these circumstances, the Department will accept any reasonable agreement of the parties taking into consideration all of the pertinent facts. However, the employer must track and record all hours worked by domestic service employees, including live-in employees, and the employee must be paid for all hours actually worked notwithstanding the existence of an agreement. The employer may assign the employee the tasks of recording the hours worked and submitting that record to the employer.

Q. If a caregiver giver stays 24 hrs or more at client's home but the employer is a 3rd party employer, can the 8 hr sleeping exemption be taken?

A. Yes, the third party employer is allowed to not pay for up to eight hours of sleep time, but certain conditions must be met. If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted.

If there is any interruption for a call-to-duty during the sleep break, then that time must be paid. Good question thanks for asking.

Q. If a worker hired as a live-in usually has to wake up at least once per night to assist the consumer, so that she generally sleeps only 4 hours before having to wake to work, but usually gets around 8 hours total of sleep, can the employer exclude those 8 hours from compensation?

A. If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted.

Interruptions to sleep during which the worker performs tasks on behalf the person must always be paid as work time. If the interruptions are so frequent that the employee cannot get at least five hours of sleep during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.

There are different rules for employees who live in the household where the services are provided. For more information, see Fact Sheet 79B: Live-in Domestic Service Workers Under the Fair Labor Standards Act, available at our website, www.dol.gov/whd/homcare.

Q. Scenario: I have an employee that works 3pm-11pm. At this time, the employee sleeps for 8 hours and resumes work at 7am. The employee then works form 7am-9am assisting clients in preparing for their day. The clients and employee leave the home and return to repeat this cycle at 3pm. Is it compliant to count their sleep period as hours worked or sleep time?

A. If an employee is required to be on duty that is, either performing work duties or engaged to wait for less than 24 hours, the employee must be paid for all hours even though he or she is permitted to sleep or engage in other personal activities when not busy. Please review Fact Sheet 79D at http://www.dol.gov/whd/regs/compliance/whdfs79c.htm that provides general information regarding hours worked applicable to domestic service employment under the FLSA.

If the employees in question are providing services in a private home, and if they reside on the employer's premises "permanently" or for "extended periods of time," then are considered live-in domestic service workers and, thus, sleep time may be excluded from paid time by agreement between the employer and employee. We cannot determine from your question whether these employees meet this residency requirement. Please review Fact Sheet 79B at http://www.dol.gov/whd/regs/compliance/whdfs79c.htm that provides general information regarding live-in domestic service workers under the FLSA.

Q. On overnight assignments, do workers have to be reimbursed even when they are sleeping since they may have some responsibility that may or may not be reimbursable by a funding source?

A. If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted.

Interruptions to sleep during which the worker performs tasks on behalf the person must always be paid as work time. If the interruptions are so frequent that the employee cannot get at least five hours of sleep during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.

There are different rules for employees who live in the household where the services are provided. For more information, see Fact Sheet 79B: Live-in Domestic Service Workers Under the Fair Labor Standards Act, available at our website, www.dol.gov/whd/homcare.

Q. Is there a change in the sleep rules? I believe that the current rule is that if a person gets less that 5 hours of sleep in a 24 hours period then they must be paid for those hours.

A. The sleep time rules are unchanged. Under the FLSA, an employee who is required to be at work for less than 24 hours must be paid even though he or she is permitted to sleep or engage in other personal activities when not busy. All the time is counted as work time that must be paid.

If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted. If the interruptions are so frequent that the employee cannot get at least five hours of sleep during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.

Q. Regarding pay for travel time, what if the drive time between consumers is not direct from consumer to consumer? If the worker stops to shop or run an errand, should the worker still be paid for travel time?

A. Thanks for the question. If the shopping or running an errand is personal rather than on behalf of the consumer, the time spent at that task is not considered hours worked. The amount of time it would take to drive directly between the consumers must still be paid.

Q. Following up on the travel time from consumer to consumer, is there a minimum amount of time spent on travel from consumer to consumer that must be paid? For example, if a worker travels from one consumer to another, but there is 1 hour between the shifts, so the worker stops to run errands, and the usual travel time between consumers is 30 minutes, when would an agency not be required to reimburse for travel time?

A. Thanks for the question. The time the employee spent completing errands or handling personal matters is not considered hours worked. However, in your example if 30 minutes is the amount of time it takes the employee to drive directly from consumer to consumer, that time is considered as hours worked and must be paid at least at the federal minimum wage rate.

Q. if an employee travels between 2 clients that are reimbursed by a state program, is that paid and are states required to reimburse for that pay?

A. It depends. Certain entities may provide referral services, perform payroll functions, or process Medicaid reimbursement payments but not act as the employer of a worker. Such entities may be fiscal intermediaries or "employers of record." Under the Fair Labor Standards Act, determinations about whether an entity has an employment relationship with a worker are made by examining all the facts in a particular case and assessing the economic realities of the work relationship. Please see the Department's Frequently Asked Questions at www.dol.gov/whd/homecare/ for more information on these factors.

Under the FLSA, employees who travel to more than one worksite for an employer during the workday must be paid for travel time between each worksite. If an employee works for two different employers, he or she does not need to be compensated for time spent traveling between the two employers' worksites.

Third party employers must pay at least the Federal minimum wage and overtime pay to all workers employed to perform domestic service employment, including workers who perform companionship services or are live-in domestic service employees. The requirement to pay minimum wage and overtime applies to third party employers even for workers who perform companionship services and are jointly employed by the individual or the individual's family or household.

Q. Under the hours required / time worked section of the final rule, it says intraday travel must be paid for. Does this apply only after the effective date of the final rule, or is it applicable currently?

A. The Final Rule does not change the Travel Time rules which are currently in effect. Under the FLSA, employees who travel to more than one worksite for an employer during the workday must be paid for travel time between each worksite. If an employee works for two different employers, he or she does not need to be compensated for time spent traveling between the two employers' worksites. These rules apply to employees who are subject to the requirements of the FLSA.

Q. Travel time question: A Direct Service Worker works for two different consumers but they are both receiving state HCBS services- does that apply as travel time to be paid?

A. Thanks for your question. Under the FLSA, employees who travel to more than one worksite for the same employer during the workday must be paid for travel time between each worksite. Its difficult to tell from your scenario if there is a third party involved and whether that employer would be a covered employer under the FLSA (that determination is made depending on the specifics of each case). If there is a third party employer employing the worker, then the travel time between consumers would have to paid. And if there is no third party employer, then the two consumers would not have to pay for the travel time.

Q. Regarding the drive time, if a person is employed by a third party and the employee goes between two different sites however the payer to the employer are two different contracts does the employee get paid for the drive time?

A. We understand your question to be regarding an employee who works for one third-party employer but may receive reimbursement from multiple sources. Under the FLSA, employees who travel to more than one worksite for an employer during the workday must be paid for travel time between each worksite. If an employee works for two different employers, he or she does not need to be compensated for time spent traveling between the two employers' worksites. Please visit our website to review the Frequently Asked Questions regarding travel time at www.dol.gov/whd/homecare.

Q. If a worker is employed at a private home that is inaccessible by public transportation and not close to stores, etc., so that the worker cannot effectively use any time during the day for her own purposes to run errands or shop, must all of her work day be compensated?

A. If the worker is completely relieved of all duties for a period of at least 30 minutes, the employer is allowed to exclude time from the hours worked requirement even in cases where the employee is not able to leave the employer's premises.

Q. Where can I find more information about paid "rest periods" for IHSS Home Care Workers?

A. Thanks for your question. Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and should be paid as working time under the Fair Labor Standards Act. For additional break time requirements under IHSS, you may find contact information for the State of CA at: http://www.dol.gov/whd/contacts/state_of.htm#CA.

Q. Under new law a person working 8am-5pm would have an 8 hour day with an hour of overtime due to the employee having to take their meal time on site and unable to be completely free of duty, is this correct?

A. Thank you for your question. Under the Fair Labor Standards Act (FLSA), bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. For more information on this topic, please see http://www.dol.gov/whd/regs/compliance/whdfs22.pdf. Assuming the employee in this case is not completely relieved from duty for the purpose of eating a meal, then that time is compensable under the FLSA. Please note, however, that the employer must pay overtime at not less than time and one of the regular rate of pay for all hours worked over 40 in a workweek. There is not a daily overtime pay requirements under the FLSA. Please check with your state labor department regarding the applicability of state law in this matter.

Q. How does the final rule affect on-duty meal and break period agreements that have been in place with employees and home care agencies? Will those agreements still be allowed as long as the total work week does not exceed 40 hours/week before OT applies?

A. Thank you for your question. The Final Rule does not affect existing agreements between live-in domestic service employees (such as a live-in home health aide or a nanny) and employers. The employer and worker may agree to exclude the amount of time spent during a bona fide meal period, sleep period, and off-duty time. If there is significant deviation from such an agreement, the employer and live-in domestic service workers should reach a new agreement reflecting the actual schedule. For additional information, please review Fact Sheet 79 B for Live-in Domestic Service Workers.

This type of agreement is only allowed for live-in domestic service employees. For more information related to meal periods, sleep time, and off-duty time for non-live-in domestic service employees, please review Fact Sheet 79 D for Hours Worked Applicable to Domestic Service Employment.

Q. If a direct home worker is not family, however, they turn in time for more than the allotted time given in the POC, is the third party agency responsible to pay for all hours over those given in the POC?

A. Yes. All hours worked must be paid even if they are in excess of the hours allotted in the plan of care, provided that the employer knew or should have known that the work occurred.



Companionship Services Definition




Q. If a provider works for more then 40 hours a week as a companion is it considered overtime or is it an exemption under the current laws?

A. Thanks for your question. An employee whose work meets the definition of companionship services does not need to be paid overtime if he/she works more than 40 hours a week. Under the Final Rule, effective 01/01/15, an employee whose work meets the definition of companionship services must be paid overtime if employed by a third party.

Q. Who will be overseeing the privately hired caregiver to ensure they are within the 20% companion exemption policy?

A. Under the FLSA, the employer is responsible for tracking the tasks along with the correlating percentages to determine if the ADLs/IADLs are within the 20% tolerance for claiming the companionship service exemption.

Q. If the provision of care is over 20% of the total hours worked for a person in a work week, does that mean the exemptions do not apply at all?

A. Thanks for your question. Under the Final Rule, effective January 1, 2015, the companionship services exemption is not applicable when the employee spends more than 20 percent of his or her workweek performing care services; in such workweeks, the employee is entitled to minimum wage and overtime pay. An employee's duties do not affect whether an employer can claim the live-in domestic service employee exemption.

For more information on the companionship exemption, please see Fact Sheet 79a, available at: http://www.dol.gov/whd/regs/compliance/whdfs79a.htm.

Q. If the care providers is assisting with IADL or ADL more than 20% of his/her time, and providing companionship services the rest of the time, is the entire time worked subject to the OT rules or just the portion that's over the 20% threshold?

A. Thanks for the question. If a worker providing services in a private home spends more than 20% of his or her workweek providing assistance to the person with ADLs and IADLs, then he or she is not performing companionship services during that week. In such cases, the worker must be paid at least the Federal minimum wage for all hours worked and overtime at one and a half his or her regular rate of pay for hours worked over 40 in the workweek. Under the Final Rule, third party employers of direct care workers (such as home care staffing agencies) are not permitted to claim either the exemption for companionship services or the exemption for live-in domestic service employees.

Q. Are employees who provide skilled care to a client through a consumer directed program entitled to overtime pay?

A. Thanks for your question. "Skilled care" is not a term that we use in the Final Rule, so we would look at the other factors that are considered. Perhaps you are thinking of medically related services. If the worker performs medically related services that typically require and are performed by trained personnel (like a registered nurse, licensed practical nurse, certified nursing assistant), then that person would be covered by the law.

If the worker does not perform medically related tasks, he or she may still be covered under minimum wage and overtime protections, depending on who the employer is and what other tasks the worker performs. You can find a good summary in Fact Sheet: Application of the Fair Labor Standards Act to Domestic Service, Final Rule.



Live-In Workers




Q. In regards to the live-In staff, could a caregiver work 3 days and be exempt from overtime?

A. Third party employers must pay at least the Federal minimum wage and overtime pay to all workers employed to perform domestic service employment, including workers who perform companionship services or are live-in domestic service employees. The requirement to pay minimum wage and overtime applies to third party employers even for workers who perform companionship services and are jointly employed by the individual or the individual's family or household. Also, third party employers of live-in domestic service workers are prohibited from claiming the overtime exemption even for live-in domestic workers jointly employed by the individual or individual's family or household.

However, the exemptions for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services rather than third party employers such as home health care agencies.

Q. If I have a CNA who is working 24 hour shifts in a client's home for 3-7 days in a row, are they exempt from overtime pay?

A. Thanks for the question. Employees who work 24-hour shifts but are not residing on the employer's premises "permanently" or for "extended periods of time" are not considered live-in domestic service workers, and the employers are not entitled to the overtime pay exemption. Employees who work 24-hour shifts but are not live-ins must be paid at least minimum wage and overtime for all hours worked unless they are otherwise exempt.

Employees who work and sleep on the employer's premises seven days per week and therefore have no home of their own other than the one provided by the employer under the employment agreement are considered to reside on the employer's premises on a "permanent basis." Employees who work 120 hours or more each week and work and sleep on the employer's premises five days a week reside on the employer's premises for "extended periods of time." Employees who work and sleep on the employer's premises for five consecutive days or nights each week would also qualify as residing on the premises for "extended periods of time" even if they do not work 120 or more hours each week.

See Fact Sheet #79B: Live-In Domestic Service Workers Under the Fair Labor Standards Act (FLSA) for more information.

Q. How will this effect live-in care givers who receive room and board as part of their compensation?

A. The FLSA allows an employer to count as part of wages the reasonable cost or fair value of furnishing an employee with board, lodging, or other facilities under certain circumstances. Specifically, employers may only count the reasonable cost or fair value of lodging as part of their minimum wage obligation to live-in domestic service employees if:

1) Employees voluntarily accept the lodging;
2) Lodging is furnished in compliance with any applicable federal, state, or local law;
3) Lodging is primarily for the benefit of the employee;
4) Employers maintain accurate records of costs incurred in furnishing the lodging; and
5) The credit claimed does not exceed the reasonable cost or fair value of the lodging furnished.

Q. Is it considered as an exemption if a provider is only working during the night for 5 nights a week for 10-12 hours each?

A. Domestic service workers who reside in the employer's home (and thus are "live-in" domestic service workers) may be exempt from the FLSA's overtime pay requirement.

In order to be a live-in domestic service worker, a worker must reside on the employer's premises either "permanently" or for "extended periods of time."

A worker resides on the employer's premises permanently when he or she lives, works, and sleeps on the employer's premises seven days per week and therefore has no home of his or her own other than the one provided by the employer under the employment agreement.

A worker resides on the employer's premises for an extended period of time when he or she lives, works and sleeps on the employer's premises for five days a week (120 hours or more). If a domestic worker spends less than 120 hours per week working and sleeping on the employer's premises, but spends five consecutive days or nights residing on the premises, this also constitutes an extended period of time.

Example: A worker who resides on the employer's premises five consecutive nights from 9:00 p.m. Monday until 9:00 a.m. Saturday (sleeping four straight days on the premises) is considered to reside on the employer's premises for an extended period of time.

For additional information regarding live-in domestic service employees, please review Fact Sheet 79B at http://www.dol.gov/whd/regs/compliance/whdfs79b.htm .

Q. In the case of a live-in worker, does overnight sleep time count as hours worked?

A. Thanks for your question. An employee who resides in the employer's home permanently or for extended periods of time need not be paid for all of the time spent at the home. When a live-in employee engages in normal personal activities such as eating, sleeping, entertaining, and other periods of complete freedom from all duties, he or she does not have to be paid for that time. For a live-in domestic service employee, the employer and employee may agree to not pay for time spent during bona fide meal periods, sleep periods, and off-duty time. If the meal periods, sleep time, or other periods of free time are interrupted by a call to duty, the interruption must be counted as hours worked. In these circumstances, the Department will accept any reasonable agreement of the parties taking into consideration all of the pertinent facts. However, the employer must track and record all hours worked by domestic service employees, including live-in employees, and the employee must be paid for all hours actually worked notwithstanding the existence of an agreement.

Q. I am not clear on the changes for live in companionship exemption for a home care agency. Currently agencies do not pay live in aides overtime. How has this changed?

A. Thanks for the question. Domestic service workers who reside in the employer's home and are employed by an individual, family, or household are exempt from the overtime pay requirement, although they must be paid at least the Federal minimum wage for all hours worked. Third party employers, such as home care agencies, may not claim the overtime exemption for live-in domestic service workers, and must pay such workers at least the Federal minimum wage for all hours worked and overtime pay at one and a half times the regular rate of pay for all hours worked over 40 in a workweek. (See Fact Sheet #79E: Joint Employment in Domestic Service Employment Under the Fair Labor Standards Act (FLSA) for information about joint employment.)

Q. What if the consumer lives in the live-in Domestic Service employee's home?

A. Good question, thanks for asking. The answer to your question would depend on the totality of the circumstances.

To determine whether the home is a private home under the FLSA (and therefore whether the worker is a domestic service employee), a variety of factors must be considered. Examples of factors include whether the worker lived in the home before the worker began providing services, who owns the home, who manages and maintains it, and whether the individual would be allowed to continue living in the home if no services were provided. These factors and others are further explained on Fact Sheet #79: Private Homes and Domestic Service Employment Under the Fair Labor Standards Act.

Q. For a live in client can a provider be paid in shifts and not an hourly rate?

A. A live-in domestic service worker must be paid at least the federal minimum for all hours worked even in cases where the employee is paid by a shift rate versus an hourly rate. To determine if the employee is paid at least the federal minimum wage, the regular rate of pay is determined by taking the total numeration of pay divided by the total of hours of work. For example, a daily rate of $50 is permissible if the employee works 5 hours--that's equal to $10 per hour--but not if the employee works 10 hours--that's only $5 per hour, which is less than the federal minimum wage.

Q. So under the current exemption a live in care provider can be present in the clients residence for 4 consecutive days.

A. Thanks for your question. The definition of a live-in domestic service worker has not changed. In order to be a live-in domestic service worker, a worker must reside on the employer's premises either "permanently" or for "extended periods of time." A worker resides on the employer's premises permanently when he or she lives, works, and sleeps on the employer's premises seven days per week and therefore has no home of his or her own other than the one provided by the employer under the employment agreement. A worker resides on the employer's premises for an extended period of time when he or she lives, works and sleeps on the employer's premises for five days a week (120 hours or more).

For more information on live-in domestic workers, please see Fact Sheet 79b, available at: http://www.dol.gov/whd/regs/compliance/whdfs79b.htm.



Record Keeping




Q. Do employers have to keep record of time and time out or is total hours worked for the day sufficient?

A. Under the FLSA, no particular order or form of records is prescribed, but the FLSA does require that an employer keep records of the time of day and day of week on which the employees workweek begins and the starting time and length of each work period. Please review Fact Sheet 79 C at http://www.dol.gov/whd/regs/compliance/whdfs79c.htm that provides general information regarding recordkeeping requirements.

Q. Who will be overseeing the privately hired caregiver to ensure they are within the 20% companion exemption policy?

A. Under the FLSA, the employer is responsible for tracking the tasks along with the correlating percentages to determine if the ADLs/IADLs are within the 20% tolerance for claiming the companionship service exemption.

Q. Should there be careful recordkeeping of sleep time arrangements? For example a worker may get 8 hours of sleep uninterrupted one night and not another.

A. Employers and families subject to the Fair Labor Standards Act must make, keep, and preserve records for each direct care worker who is entitled to minimum wage and/or overtime pay. The law requires no particular form of records, but does require that the records include certain information about the wages earned and the time worked. The worker is, of course, required to be paid for any sleep time that's interrupted by a call-to-duty, and the employer would be required to keep records of that time.

Helpful Fact Sheets include #79C on Recordkeeping and #79D on Hours Worked. (Additionally, if the worker is a live-in worker, you can learn more from #79B about creating arrangements excluding certain hours from paid work time.)

Q. Are agreements made between live-in workers & consumers formalized in any way?

A. Under 29 CFR 785.23, an employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. The employer is to maintain a copy of the agreement and indicate that the employee's work time generally coincides with the agreement. If there is a significant deviation from the agreement, a separate record should be kept and a new agreement should be reached.

Q. Will the paperwork employers have to file be recorded by any regulatory body (an agency, etc.)?

A. Employers subject to the FLSA must make, keep, and preserve records for each domestic service worker who is entitled to minimum wage and/or overtime pay. The law requires no particular form of records, but does require that the records include certain information about the employee and data about the hours worked and wages earned.

Generally, the records must be made available to the Wage and Hour Division upon request. However, this response does not consider statutory obligations outside of the Wage and Hour Division so you may wish to consult your legal representative with respect to other laws and regulations.



Wage Calculations




Q. If state minimum wage rates are greater than federal rates. Can third party providers use Federal Wage rates as base for calculating pay or must they use State Min wage rates?

A. Thanks for your question. Some states may provide for different requirements; however, employers covered by both the FLSA and state laws must comply with the higher minimum wage. For more information, please refer to: http://www.dol.gov/whd/minwage/america.htm.

Q. Does the federal law supersede state law, i.e. new CA law, or will state law supersede as long as compliant with federal law at a minimum?

A. Good question since many states have their own wage and hour laws. Where both state and federal laws apply, an employer must follow the more worker-protective requirement in every instance. Thank you.

Q. If a state has a minimum wage higher than the federal minimum wage does the overtime have to be paid on the higher of the two rates?

A. Thanks for your question. Some states may provide for different requirements; however, employers covered by both the FLSA and state laws, they must comply with the higher minimum wage. For more information on calculating the overtime rate, please refer to: http://www.dol.gov/whd/regs/compliance/whdfs23.pdf.

Q. For live-in shifts do I have to pay the state or federal minimum wage?

A. Thank you for your question. Where state and federal laws exist, the employer must pay the higher of the rates applicable.

Q. How does an employee that is considered "salaried" affect wage and overtime? E.g., a dad is paid $100 a day for services to his son.

A. Good question, thanks for asking. An employer may pay the worker a flat rate as long as that rate is at least equal to the minimum wage on an hourly basis. So in your example, if the father worked 10 hours, the hourly rate would be $10/hour, which is sufficient to meet the federal minimum wage requirement (you may want to check if your state has its own minimum wage law). If the father works more than 40 hours in a workweek, then overtime requirements would apply see Fact Sheet #23 on the Wage and Hour Division website, http://www.dol.gov/whd/regs/compliance/whdfs23.pdf.

Q. What if the caregiver is on salary?

A. A caregiver entitled to the protections of the Fair Labor Standards Act can be paid an hourly rate or on a salary basis as long as they are paid at least the current Federal minimum wage for all hours worked and, if applicable, the overtime premium for any hours worked in excess of 40 in a workweek.

Q. What if someone is on a salary?

A. The Department's Final Rule makes two significant changes: (1) the tasks that comprise exempt "companionship services" are more narrowly defined; and (2) the exemptions for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services rather than third party employers such as home health care agencies. Third party employers must pay at least the Federal minimum wage and overtime pay to all workers employed to perform domestic service employment, including workers who perform companionship services or are live-in domestic service employees. The requirement to pay minimum wage and overtime applies to third party employers even for workers who perform companionship services and are jointly employed by the individual or the individual's family or household. Also, third party employers of live-in domestic service workers are prohibited from claiming the overtime exemption even for live-in domestic workers jointly employed by the individual or individual's family or household. Employees who are entitled to the minimum wage and overtime protections may be paid a salary as long as the salary meets the minimum wage requirements for all hours worked in the workweek and the regular rate of pay is used in calculating overtime compensation due for any hours over 40 hours in a workweek.

Q. As a home care agency can I pay an employee one rate for hourly work and a different hourly rate for live-in work as long as both wages are at or above the minimum wage?

A. Thank you for your question. Under the Fair Labor Standards Act (FLSA), an employer may pay different rates for different types of work so long as the pay rates are not less than the current federal minimum wage. Overtime computed at not less than time and one half of the regular rate of pay must be paid to the employee for all hours worked over 40 in a workweek. For more information about calculating overtime for an employee paid at more than one hourly rate, please see the regulations at 29 CFR part 778.

Q. A live-in HHA getting paid $10.35 per hour and currently $10.88 per hr for hrs over 40 per week. Jan 2015 am I to understand that the overtime is based on the $10.35 per hr or min wage.

A. Effective January 1, 2015, in this case the live-in HHA worker would be required to receive time and one-half the regular rate of pay for all hours worked in excess of forty in a workweek.

Q. I thought live-in workers hired directly by the consumer were NOT subject to overtime, so please explain your answer to the previous question: A live-in HHA getting paid $10.35 per hour and currently $10.88 per hr for hrs over 40 per week. Jan 2015 am I to understand that the overtime is based on the $10.35 per hr or min wage.

A. Thank you for this follow-up inquiry. We assumed based on the original question that the live-in domestic service employee was employed by a third-party employer and was therefore entitled to overtime compensation. If the worker meets the qualifications for the live-in domestic service employee exemption (including being employed solely by a consumer), she would not have to be paid overtime for hours worked over 40 in a workweek.

Q. Can a an employer that pays for a night shift that is less than 12 hours pay a different wage for awake time and sleep time on that shift? ($10 for awake & minimum wage for asleep?)

A. The federal minimum wage is due for all hours worked. However, in cases where the employee works more than 40 hours per week, the employer has to determine the regular rate of pay to calculate the overtime rate. Under Section 7(g) of the FLSA, in most cases, the regular rate of pay is determined by taking the total numeration of pay for the different duties divided by the total of hours of work. This regular rate is then divided by half and multiplied by the hours worked in excess of forty per week.

Q. Does the worker have to be paid minimum wage and overtime for time worked over 40 hours per week if the regular pay is equal to or more than overtime time?

A. Thanks for the question. Generally, an employee must be paid at least the federal minimum wage for all hours worked and must be paid the overtime premium for any hours worked in excess of 40 in a workweek. Overtime pay is calculated based on the regular rate of pay. You may wish to review 29 CFR Part 778 for more information regarding the regular rate of pay. A link is provided for your convenience: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.39&idno=29.

Q. Is overtime requirement for an employee paid bi-weekly, 40 hours per week or 80 hours for two weeks?

A. The Fair Labor Standards Act takes a single workweek as its standard and does not permit averaging of hours over two or more weeks. If an employee works 30 hours one week and 50 hours the next, the employee must receive overtime compensation for the overtime hours worked in the second week.

Q. If a homecare workers regular rate of pay is equal to or greater than the minimum wage plus overtime rate would an employer be required to pay overtime for time worked over 40 hours?

A. Yes. The employer is required to pay overtime at time and one-half the regular rate of pay for all hours worked over 40 in a workweek, even if the regular rate is higher than minimum wage (or one and a half times the minimum wage). More information about overtime pay under the Fair Labor Standards Act is available at: http://www.dol.gov/whd/overtime_pay.htm.

Q. If an office employee does in home care after he finishes his 9-5 in office does the in home care hours count as over time?

A. Thanks for your question. If a worker is jointly employed by multiple employers, all hours worked in the workweek would be combined for payment. However, if the worker is separately employed by different employers and joint employment does not exist, the hours worked by different employers would not be combined in a single workweek. For further information on joint employment under the FLSA, please refer to fact sheet 79e: http://www.dol.gov/whd/regs/compliance/whdfs79e.htm.

Q. If an employer pays over minimum wage, can we set a different pay rate for sleep time?

A. Thank you for your question. Under the Fair Labor Standards Act (FLSA), an employer may pay different rates for different types of work so long as the pay rates are not less than the current federal minimum wage. Overtime computed at not less than time and one half of the regular rate of pay must be paid to the employee for all hours worked over 40 in a workweek. For more information about calculating overtime for an employee paid at more than one hourly rate, please see the regulations at 29 CFR part 778.

Q. As a third party employer, if we currently pay our domestic care workers a flat rate for each 24 hour shift they work, do we need to start paying them hourly instead of the flat rate?

A. You may continue to pay a flat rate to the domestic service worker as long as that rate covers the minimum wage and the employer pays any overtime obligation under the FLSA. The federal minimum wage is due for all hours worked. However, in cases where the employee works more than 40 hours per week, the employee is due overtime pay. See 29 CFR 778.112 for more information on calculating overtime on a "day rate.

Q. Some of our workers get paid different rates for different clients. When calculating the overtime pay do we use a blended rate?

A. Thank you for your question. A non-exempt worker will be paid at their regular rate, which may be greater than the applicable minimum wage. The regular rate is calculated by the total remuneration for the workweek divided by the total hours worked in that week. Employers may use a blended rate or pay time and a half the rate in effect under Section 7(g) under the FLSA.

Q. Does the effective date of 1/1/15 apply to the date of check issued or date service is provided?

A. Thanks for your question. These rules apply to all worked performed beginning January 1, 2015.

Q. Will these new rules apply immediately for family caregivers?

A. Thanks for asking. The effective date for this Final Rule is January 1, 2015. If the work of a family caregiver is subject to the FLSA, then an employer will be required to pay at least the federal minimum wage and overtime pay for work performed on or after that date.

Q. I am a 3rd party agency and I pay a live in daily rate as opposed to an hourly rate is that exceptable and would that make me exempt from paying overtime?

A. In response to the first part of your question, you may pay the live-in worker a daily rate as long as the rate is equal to at least the current minimum wage per hour. (For example, a daily rate of $50 is permissible if the employee works 5 hours--that's equal to $10 per hour--but not if the employee works 10 hours--that's only $5 per hour, which is less than the federal minimum wage.) As to the second part of your question, third party employers are not permitted to claim either the exemption for companionship services or the exemption for live-in domestic service employees; therefore, you would not be exempt from paying overtime to live-in domestic service employees.

Q. How does this apply to agencies that pay their HHA's at time and 1/2 of minimum wage as a starting salary?

A. Third party employers must pay at least the Federal minimum wage and overtime pay to all workers employed to perform companionship services and at least the federal minimum wage to live-in domestic service employees.

Q. If you have an 80 hour pay period, at what point do you have to pay overtime? For example, an employee may work 45 hours one week but only 35 in the second week of the pay period.

A. An employer's obligation to pay overtime to a covered worker is a workweek-by-workweek requirement. An employer is required to pay a covered worker at least one-and-one-half times the worker's regular rate of pay for all time worked above 40 hours in any workweek. Thanks for your question!

Q. How do you calculate overtime for an employee who is paid both through a Medicare program (IHSS) and another third party employer?

A. The companionship service and live-in domestic service exemptions are not available to third party employers. The calculation of overtime would be at time and one half the regular rate of pay for all hours worked over 40 in a workweek.

Q. Does the worker who works over 40 hrs in a week get paid overtime on min wage or on the hourly rate

A. A non-exempt worker who performs over 40 hours a week of work will be paid at time and a half at their regular rate, which may be greater than the applicable minimum wage.

Q. In response to your first Q&A, I thought the new AB stated overtime was after 9 hours per day or 45 hours per week

A. Thanks for your question. Under the Fair Labor Standards Act, overtime must be paid at time and one half the regular rate of pay for hours worked over 40 in a workweek.

Q. Doesn't AB241 state OT after 45 hours for a home care agency?

A. Thanks for your question. Under the Fair Labor Standards Act, overtime must be paid at time and one half the regular rate of pay for hours worked over 40 in a workweek. Some States may provide for different requirements; however, employers covered by both laws must comply with the higher requirement. For more information on your state law, please see the following website: http://www.dol.gov/whd/contacts/state_of.htm



Miscellaneous




Q. Regarding private home definition: What if an individual moves into a home that the individual bought and care is set up in the home. In other words, the individual did not live in the home prior to needing services. How does that meet the definition?

A. Thank you for your question. No one factor determines if a dwelling meets the private home definition. If the other factors considered suggest that the dwelling you mentioned in your question meets the definition of a private home, then the dwelling would be considered a private home even if the individual who needs care moved into this dwelling to receive services. For additional information regarding Private Homes, please review Fact Sheet 79 at http://www.dol.gov/whd/regs/compliance/whdfs79.htm.

Q. Does the Wage & Hour Division have plans for an enforcement initiative in the home care industry in 2015?

A. Thank you for your question. The rule is not effective until January 1, 2015. The Department is focused on education and outreach at this point to ensure everyone understands all applicable rights and responsibilities under the Final Rule.

Q. If this the final rule, why do want to maintain a dialog with providers?

A. Good question, thanks for asking. We have created many materials on our website (dol.gov/whd/homecare) to help families and employers understand the requirements of the law. And we're interested in continuing this dialogue with you so we can hear your feedback and respond with new and updated materials. We'll review all questions asked today (even the ones we don't have time to respond to) and will update our FAQs, fact sheets, and other materials as appropriate. This communication also helps us identify future outreach opportunities. Thank you.

Q. Will Medicaid Services also play a role in educational efforts?

A. The Department will work closely with stakeholders and HHS to provide additional guidance and technical assistance during the period before the rule becomes effective, in order to ensure a successful transition for all involved parties.

Q. Why do you use "Home Health Aide" as an example of "companion" when - by definition - the HHA provides assistance with ADLs, IADLs, and health related tasks? Is there an example of an HHA that would be considered a companion under this rule?

A. Good question, thanks for asking. We recognize that workers who perform the same job duties often have different job titles. A long-standing rule under the Fair Labor Standards Act is that job titles do not determine eligibility for the laws protections. Instead it is a workers duties that matter.

Q. Will the work hour hours change from 40 to something else in the year 2013, 2014, 2015

A. Thanks for your question. Under the Fair Labor Standards Act, overtime is required for hours worked by an employee after 40 hours. Absent congressional action, the workweek under the FLSA will remain at 40 hours.

Q. A salaried house manager works in the home from 7am Monday through 7am Friday. They are given a bedroom to sleep at night, while others are on shift. Will they be required to be paid overtime?



A. Unfortunately, we do not have enough information to provide a definitive answer to your question. For example, we cannot determine if the house manager is working in a resident's private home or group home setting. We also cannot tell from the limited facts whether the manager qualifies for the executive exemption under 29 CFR Part 541. We suggest you review the following fact sheets:
http://www.dol.gov/whd/overtime/fs17b_executive.pdf
http://www.dol.gov/whd/regs/compliance/whdfs79.pdf
http://www.dol.gov/whd/regs/compliance/whdfs79d.pdf

Q. If the consumer is only allowed 30 hours a week and the worker does more than the 30 hours a week do they get paid overtime for the other time they are in the home?

A. Under the FLSA, the overtime requirement at time and one-half the regular rate of pay is only due after the employee works in excess of 40 hours per week. With that being said, in your example all hours worked in excess of the 30 must be paid at least at the federal minimum wage rate.

Q. In an agency provided home, has there been any change in the provision that a live in manager may be exempt from over time if they supervise 2 full time staff.

A. Thank you for your question. If the live-in manager meets the FLSA exemption for Executive employees (29 CFR Part 541, see http://www.dol.gov/whd/overtime/fs17b_executive.pdf), this employee would not be required to receive the overtime premium. The Final Rule does not change the current 541 provisions.

Q. Is a group home a Private Home?

A. Thanks for the question. Typically, a home owned and occupied by a family would be a private home. But a nursing home, residential treatment facility, residential care home or facility, or other similar residence would not be considered a private home for the purpose of domestic service employment under the FLSA.

And to determine whether or not services were provided in a private home depends on a number of factors. You can find more details about what is considered a private home in Fact Sheet #79: Private Homes and Domestic Service Employment Under the Fair Labor Standards Act.

Q. At a group residence, direct staff works 7 days/24 hours/day straight. Is it correct to think that the person will be paid 16 hours per day and overtime? Is it possible to pay this position by salary?

A. Thanks for the question. We understand by your reference to a group residence that you are referring to a facility that will not qualify as a private home. If an employee is required to be on duty for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, and (2) the employee's time spent sleeping is usually uninterrupted. Additionally, if there are other periods where the employee is completely relieved of duty and may use the time for their own purposes, such time may be excluded from hours worked. If there is no express or implied agreement with respect to how an employee will be paid for sleep time, all hours spent on duty, including time spent sleeping, must be counted as work time. The Fair Labor Standards Act requires that an employee be paid time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. A nonexempt employee may be paid a salary as long as the salary meets the minimum wage requirements for all hours worked in the workweek and the regular rate of pay is used to determine overtime pay for all hours over 40 in a workweek.

Q. Regarding the companionship services exemption. What happens if the consumer does not have family and they have a public guardian. can the public guardian use this exemption?

A. Yes. The revised regulation permits "the individual or member of the family or household" who employs the direct care worker or live-in domestic service worker to claim companionship services and live-in domestic service worker exemptions. It is the Department's intent that the phrase "member of the family or household" be construed broadly, and no specific familial relationship is necessary. For example, a member of the family or household may include an individual who is a child, niece, guardian or authorized representative, housemate, or person acting in loco parentis to the individual needing companionship or live-in services.