See Also: Minimum Wage Provisions For Home Care Aides

Obama Backs Overtime Pay for Home Care Aides

President Obama came out in support Thursday, 15 December 2011 of a long awaited labor law change, that would entitle nearly 1.8 million home care aides to overtime pay and a guaranteed minimum wage. The rule is still under review, but if approved it will remove a 36-year-old exemption for home care aides from the Fair Labor Standards Act, the law that provides basic wage protections for most American workers.

Most home health aides are already being paid above the minimum wage, but many of them do not receive overtime - a time-and-a-half premium when they work more than 40 hours a week - thanks to the so-called companionship exemption - see below at federal overtime pay provisions.

In 2007, the Supreme Court ruled against a home care aide named Evelyn Coke, who argued that her long hours entitled her to overtime pay. The court upheld the companionship rule, leaving it to either Congress or the Labor Department to update it. Congress has done little on the issue, but the Labor Department has moved the rule change forward with the backing of Sec. Hilda Solis. 

According to Solis and the Department of Labor, there are 6 million seniors who need daily assistance to live outside of nursing homes. That number is expected to double by 2030.

Overtime Pay Provisions Home Care Aides - Federal and per State

Overtime Provisions
 Notes
Federal
 YES
 May or may not be covered for overtime: persons employed in domestic service in household. They can be: nurses, certified nurse aides, home health care aides and other persons providing home health care services.

Exempt from overtime pay are employees providing "companionship services". This means according the FLSA services for the care, fellowship, and protection of persons who because of old age or physical or mental infirmity cannot care for themselves. Such services include household work for aged or infirm persons, including meal preparation, bed making, clothing washing and other similar personal services. General household work is also included, as long as it does not not exceed 20% of the total weekly hours worked by the companion. Where the 20% limitation is exceed the employee must be paid overtime.
The term companionship services does not include services performed by trained personnel such as registered or practical nurses.
Covered domestic service employees who reside in the household may be exempt from overtime requirements.

Source: US Department of Labor Fact sheet 25: the home health care industry under the FLSA.
ALASKA  NO
ARIZONA
 NO

ARKANSAS
  NO

CALIFORNIA
 YES
 California's overtime rules create in terms of overtime four categories of workers who provide in-home care. (1) Those who are employed by non-profits and do no additional work beyond feeding, dressing, and supervising the person do not receive overtime. (2) Those who are employed by non-profits but do additional work beyond feeding, dressing, and supervising do receive overtime. (3) All for-profit workers receive overtime regardless of their job description. (4)   County-employed in-home care worker, of whom there are approximately 367,000, receive up to $11.50 an hour straight time per their union contracts and may also receive overtime under those contracts.
  COLORADO
 YES
 Overtime pay coverage for third-party-employed in-home care workers who do work beyond Colorado's definition of "companion." Colorado's definition of "companion" is much narrower than the FLSA definition. Companions may not help to bathe and dress the person, do any amount of housekeeping, or remind the person to take medication. People who do those tasks are more than just "companions" they are "personal care" attendants. Personal care attendants are entitled to overtime. However, PCAs employed directly by private households are exempt from overtime.
CONNECTICUT
 NO
DELAWARE
 NO
DISTRICT OF COLUMBIA
 YES
 Overtime pay for companions as defined in the FLSA.
  FLORIDA
 NO

GEORGIA
 NO
HAWAII
 YES
 Overtime pay coverage for companions as defined in the FLSA, but exemption for those employed directly by private households.
IDAHO
 NO
ILLINOIS
 YES
 Overtime pay coverage for any person whose primary duty is to be a companion for individual(s) who are aged or infirm or workers whose primary duty is to perform health care services in or about a private home. There may be an exemption for those employed solely by private households as a result of a general exemption for employers with fewer than four employees.
INDIANA
 NO
IOWA
 NO
KANSAS
 NO
KENTUCKY
 NO
LOUISIANA
 NO
MAINE
 YES
 Overtime coverage for all companions as defined in the FLSA. No relevant exemptions.
MARYLAND
 YES
Overtime pay coverage for all companions as defined in the FLSA.
MASSACHUSETTS
 YES
 Overtime coverage for all companions as defined in the FLSA. No relevant exemptions.
MICHIGAN
 YES
 Overtime coverage for companions as defined in the FLSA, but exemption for live-in workers. Exemption for workers employed solely by private household as a result of exemption for employer with fewer than two employees.
MINNESOTA
 YES
 Overtime coverage after 48 hours for all companions as defined in the FLSA, but nighttime hours where companion is available to provide services but does not actually do so need not be compensated.
MISSISSIPPI
 NO
MISSOURI
 NO
  MONTANA
 YES
 Overtime coverage for companions as defined in the FLSA, but exemption for those employed directly by private households.
NEBRASKA
 NO
 No state overtime law.
NEVADA
 YES
 Overtime coverage for companions as defined in the FLSA, but exemption for live-in workers. Also, business enterprises with less than $250,000 annually in gross sales volume need not pay overtime.
NEW HAMPSHIRE
 NO
NEW JERSEY
 YES
 Overtime coverage for all companions as defined in the FLSA. No relevant exemptions.
NEW MEXICO
 NO
NEW YORK
 YES
 There is overtime coverage for all companions but those employed by third party agencies receive overtime at a reduced rate of 150% of the minimum wage (rather than the usual 150% of their regular rate of pay). Overtime coverage for live-in workers after 44 hours/week (rather than the usual 40 hours) at the same rates detailed above.
N. CAROLINA
 NO
N. DAKOTA
 NO
OHIO
 NO
OKLAHOMA
 NO
OREGON
 NO
PENNSYLVANIA
 YES
 Overtime coverage for companions as defined in the FLSA, but exemption for those employed solely by private households.
RHODE ISLAND
 NO
S. CAROLINA
 NO
S. DAKOTA
 NO
TENNESSEE
 NO
TEXAS
 NO
UTAH
 NO
VERMONT
 NO
VIRGINIA
 NO
 Federal minimum wage used as reference; no amounts written in law.
WASHINGTON
 YES
 Overtime coverage for most companions as defined in the FLSA, but exemption for live-in workers.
WEST VIRGINIA
 NO
WISCONSIN
 YES
 Overtime coverage for most companions as defined in the FLSA, but overtime exemption for those employed directly by private households, and those employed by non-profit organizations. 
WYOMING 
 NO


Source: U.S. Department of Labor: State Minimum Wage and Overtime Coverage of Non-Publicly Employed Companions.
 
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