August 19, 2020
Despite substantial pushback from the home health care industry, in 2015, many home health care workers became eligible for overtime pay for the first time. Medical companions, including some home health aides, were previously exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirements. Patients in need of home health services often require 24/7 care, which can result in demanding shift work, substantial overtime wage obligations, and increased consumer costs. Many home health companies challenged these proposed changes to the FLSA and refused to pay home health workers overtime. Federal judges have ruled in favor of overtime pay for home health care workers, but many health care workers are still trying to collect outstanding overtime wages dating back to 2015.
The FLSA requires home health companies to pay qualifying healthcare employees overtime wages. Many medical and companionship companies circumvent these overtime requirements in violation of the FLSA. Failure to pay qualifying home health workers overtime wages may entitle these dedicated medical aides to back pay and additional compensation. At McClanahan Powers, PLLC, our compassionate employment lawyers may be able to help committed home health care workers recover the unpaid overtime compensation they deserve. Schedule your free minimum wage & overtime consultation with McClanahan Powers’ experienced D.C. and Virginia labor law attorneys today by calling 703-520-1326 or contacting us online.
The U.S. Department of Labor, which regulates wage and overtime requirements, recently made major changes to its overtime eligibility rules. These changes went into effect earlier this year, but a similar amendment designed to help home health care workers actually went into effect in 2015. As of 2015, most qualified home care workers, including those who provide medical companionship services, are entitled to minimum wage and overtime pay. Eligible home care workers must receive at least minimum wage for the first 40 hours worked in a workweek (7 days) and at least time and a half (1.5x) their normal hourly wage for every additional hour worked during that week. The workweek can start on any day of the week, i.e., Saturday through Friday, and there is no limit to the number of hours a medical aide can work.
Home health aides often work in shifts, but overtime is measured on a weekly and not daily basis. For example, Janet works as a home health aide for Mark from Saturday through Wednesday from 6:00 a.m. to 6:00 p.m. and is paid federal minimum wage ($7.25 per hour). Janet worked 60 hours during the workweek and is owed $290 ($7.25 x 40 hours) in regular wages and $217.60 ($10.88 (1.5x) x 20 hours) in overtime wages. She should net $507.60 per week. The home health aide’s employer is typically responsible for keeping hours and paying overtime. This can get confusing if the aide was hired through a private medical company or if the patient is reimbursed by insurance. Generally, the employer would be the person or organization handing Janet her paycheck regardless of who found the aid or if the employer is reimbursed by insurance.
Not everyone who works in a private home qualifies for overtime as a home care worker. Home care workers are defined as those who provide the following services in the patient’s own home:
Common terms for home health workers include caregivers, home health aides, certified nursing assistants (CNA), personal care attendants, or caregivers. Anyone, including a neighbor or off-duty nurse, may work as a home health aide. Home care workers do not have to live in the consumer’s home, but they have to provide the majority of services in the consumer’s private residence. This includes the consumer’s own home or a loved one’s home, but it does not include nursing homes, rehabilitation facilities, medical group homes, or assisted living facilities.
There is a difference between qualified home care workers and workers providing companionship services. The 2015 amendments to the FLSA revised the term companionship services to include anyone who provides protection and fellowship to someone with a disability, illness, or injury in the consumer’s home. Fellowship and protection include playing games, shopping, going for walks, or taking the consumer to appointments. This is not considered caring for an individual so much as acting as a companion. Companions are not owed overtime wages if they spend less than 20 percent of their time providing actual care to the consumer. Actual care includes, but is not limited to, the following:
Many home care workers provide a combination of fellowship, protection, and care services, and the employer is ultimately responsible for determining when overtime is owed. Because consumers of home care services often require extensive care resulting in substantial overtime owed to home medical aids, some employers illegally claim home health workers are exempt companions. Employers may also mistakenly assume they only need to count hours spent caring for an individual towards the overtime requirement. This isn’t true. If a companion spends more than 20 percent of her time providing care services, i.e., cleaning or administering medications, all hours worked must be counted towards minimum wage and overtime requirements even if they are companionship hours.
The compassionate FLSA employment lawyers at McClanahan Powers may be able to help home care workers determine whether they’ve been illegally denied minimum wage and overtime pay. The 2015 FLSA overtime amendments addressed the demanding and tireless work of home health aides and were passed to ensure they were protected by federal overtime law. Home health workers who have been illegally denied overtime benefits may be entitled to double the back pay owed and can often recover attorney’s fees and court costs. Contact McClanahan Powers today for your overtime and wage analysis by calling 703-520-1326 or contacting us online.