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Wage and Hour Division (WHD)

(September 2013) (PDF)

Fact Sheet # 79D: Hours Worked Applicable to Domestic Service Employment Under the Fair Labor Standards Act (FLSA)

Background

Domestic service employment means services of a household nature performed by a worker in or about a private home (permanent or temporary). The term includes services performed by workers such as companions, babysitters, cooks, waiters, maids, housekeepers, nannies, nurses, janitors, caretakers, handymen, gardeners, home health aides, personal care aides, and family chauffeurs. This listing is illustrative and not exhaustive. Employees providing services in a private home are generally domestic service employees covered under the Fair Labor Standards Act (FLSA). These employees must be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one half the regular rate of pay for hours worked over 40 in a workweek. Section 13(a)(15) of the FLSA provides a narrow exemption from the minimum wage and overtime requirements for casual babysitters and workers employed to perform companionship services for an elderly person or person with an illness, injury or disability. Section 13(b)(21) of the FLSA provides an exemption from the overtime, but not the minimum wage requirement for those employees who reside in the private home where they work (live-in domestic service employees).

This fact sheet is intended to provide guidance on those circumstances in which an employee who is covered by the FLSA minimum wage and overtime provisions is engaged in compensable work and therefore must be paid for those hours worked. The key issue in determining when workers are performing compensable work is whether they are working or engaged to wait for work or whether they have been completely relieved from duty and are able to use the time for their own purposes.

Generally, when an employee is “on duty” (that is they must be in the home and prepared to provide services when required), they are working. For example, a nurse who must watch over an ill patient, a chauffeur who must be at the home and ready to drive when directed, or a nanny who must watch over her charge even when sleeping are all on duty and must be paid for all of that time. Under the FLSA, an employee who reads a book, knits, or works a puzzle while awaiting assignments is working during the period of inactivity. In such cases, the employee is “engaged to wait” and must be paid for such time.

On the other hand, domestic service employees (including live-in employees) who have been completely relieved from duty and are able to use the time for their own purposes—to go to a movie, run a personal errand, attend a parent-teacher conference— need not be paid for this time. For example, a live-in care provider who assists her roommate who has a disability in the morning for three hours, then goes to class at the local university, returns home to study, watches television, and does her own laundry before assisting the roommate for two hours in the evening,

FS 79D has only worked five hours; the hours spent actually engaged in assisting the roommate who has a disability is deemed to be compensable hours worked.

“Hours Worked”

An employee who works on the employer’s premises is not necessarily considered working all the time he or she is on the premises.

Example: Wendy is employed as a live-in domestic service worker for Mr. White. Wendy and Mr. White have an agreement that she will provide assistance with toileting, bathing, dressing, preparing breakfast and transportation to Mr. White’s workplace. This normally takes 2.5 hours depending on traffic to Mr. White’s office. Mr. White is at work from 9:00 am to 4:00 pm, and Wendy is not required to remain with Mr. White. In fact, Wendy goes to another part-time job at the grocery store. At the end of Mr. White’s workday, Wendy transports Mr. White to his home, prepares dinner for him and cleans up afterward before assisting Mr. White as he retires for the evening. This normally takes 4 hours. Wendy’s compensable hours worked in this scenario are 6.5.

Example: George is hired as a personal attendant for Mr. Norton. He is expected to report to work at 7:00 am, when Mr. Norton’s daughter departs for work, and to stay until she returns in the evening, usually at 8:00 pm. While at the Norton residence, George is expected to be available should Mr. Norton need assistance with dressing, preparing meals, taking walks in the garden, or for any other reason. Three days a week George leaves at 1:00 pm to attend to personal business and returns at 4:00 pm. There are some days when George chooses not to leave the residence during this time but rather to stay and read a book or tend to personal paperwork. George is “engaged to wait” and is considered to be working during all the time he is at the residence attending to, or is expected to be available to, Mr. Norton. George is not working when he is completely relieved from duty for a period long enough to use the time effectively for his own purposes, such as running personal errands, reading a book, or doing personal paperwork.

Example: William lives with his cousin, Ms. Jones, who has a developmental disablility. William is employed by a state agency to tend to her basic needs—preparing meals and feeding her, bathing, dressing, and administering medications. William spends 6 hours a day performing these functions and otherwise is free to leave the residence and to use the remainder of his day as he sees fit. William’s hours worked are the 6 hours he spends preparing meals, feeding, bathing, and administering medications to his cousin, Ms. Jones.

Travel Time

An employee who travels from home to work and returns to his or her home at the end of the workday is engaged in ordinary home-to-work travel which is a normal incident of employment. Normal travel from home to work and return at the end of the workday is not work time. This is true whether the employee works at a fixed location or at a different location each day. For live-in domestic service employees, home-to-work travel that is typically unpaid does not apply in this case because the employee begins and ends his or her workday at the same home in which he or she resides. Travel that is all in a day’s work, however, is compensable hours worked.

Example: Barbara drives Mr. Jones to the Post Office and grocery store during the workday. Barbara is working and the travel time must be paid.

Travel away from the home is clearly work time when it cuts across the employee’s workday. The employee is merely substituting travel for other duties. Thus, if an employee hired to provide home care services to an individual (consumer) accompanies that consumer on travel away from home, the employee must be paid for all time spent traveling during the employee’s regular working hours. As an enforcement policy, WHD will not consider as work time the time the employee spends as a passenger on an airplane, train, boat, bus or automobile when in travel away from home outside of regular working hours. However, the employee must be paid for all hours engaged in work or “engaged to wait” while on travel. For example, an employee who is required to travel as a passenger with the consumer “as an assistant or helper” and is expected to perform services as needed is working even though traveling outside of the employee’s regular work hours. However, periods where the employee is completely relieved from duty, which are long enough to enable him or her to use the time effectively for his or her own purposes, are not hours worked and need not be compensated.

Example: John is a personal attendant for Mrs. Brown, who lives in Atlanta. Mrs. Brown attends a conference in New York City and John accompanies her by plane. John normally works 8:00 am to 4:00 pm. Mrs. Brown’s daughter takes her to the airport where they meet John for the flight at 6:00 pm. WHD will not consider the flight time as compensable hours because it is time spent in travel away from home outside of regular working hours as a passenger on an airplane if John is completely relieved from duty. If John provides assistance to Mrs. Brown while at the airport or during the flight or must be available to assist or help as needed, he is working and must be compensated for this time.

Domestic Service Employees Who Are Employed by a Third-Party Employer: Such an employee who travels from home to work and returns to his or her home at the end of the workday is engaged in ordinary home-to-work travel that is not compensable work time. However, travel from job site to job site during the workday, such as travel between several clients during the workday, is compensable hours worked. The third-party employer is responsible for ensuring that travel time from job site to job site is paid.

Live-in Domestic Service Employees

A live-in domestic service employee is an employee who provides domestic services in a private home and resides on his or her employer’s premises on a “permanent basis” or for “extended periods of time.” See Fact Sheet 79B Live-In Domestic Service Workers Under the Fair Labor Standards Act (FLSA). 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 are considered to “permanently reside” on the employer’s premises. Moreover, in accordance with longstanding agency policy, employees who work and sleep on the employer’s premises for five days a week (120 hours or more) are considered to reside on the employer’s premises for “extended periods of time.” Only those employees who are providing domestic services in a private home and are residing on the employer’s premises “permanently” or for “extended periods of time” are considered live-in domestic service employees under the FLSA. Employees who work 24-hour shifts are not necessarily live-in domestic service workers.

“Hours Worked” When On Duty for Less Than 24-hours

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. However, if an employee is completely relieved from duty, is able to use time effectively for his or her own purposes, and is permitted to leave the employer’s premises, the time is not compensable.

“Hours Worked” When On Duty for 24 Hours or More

If an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide sleeping period of not more than eight hours from work time, provided adequate sleeping facilities are furnished by the employer and the employee can generally enjoy an uninterrupted sleeping period.

Example: Patricia works as a domestic service worker and is scheduled to be on duty for a 36-hour shift. After 18 hours of caring for Mr. Kerschner, Patricia is completely relieved from duty to go to a dental appointment and attend a school conference. Patricia returns after six hours to continue caring for Mr. Kerschner for an additional 12 hours. Patricia must be paid for the first 18 hours and the final 12 hours of the previously scheduled shift. In this situation, Patricia is not on duty for 24 hours or more because the free time during the shift “breaks” the on-duty period for calculating compensable hours worked.

Example: Ernest works as a domestic service worker and is scheduled to be on duty for a 36-hour period to care for Mr. Honeycutt. Ernest has an agreement to exclude his meal periods (two thirty minute periods) and eight hours of sleep time from his compensable time. Ernest is released from duty at the end of the 36 hours. During the duty time, Ernest spends eight hours sleeping uninterrupted. Ernest must be paid for 27 hours.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the Department’s regulations.