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Minimum Wage and Overtime Pay for Home Care Aides

Starting January 1st, 2015 most direct care workers are entitled to be paid at least the federal minimum wage and overtime pay.

If you are a direct care worker employed by a home care agency or another third party, other than the person you assist or that person's family or household, you are entitled to at least the federal minimum wage and overtime pay.

If you are employed only by the person you assist, or that person's family or household, you may or may not be entitled to minimum wage and overtime pay, depending on your duties. 

Find out if you are entitled to federal minimum wage and overtime pay.

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.

Covered from 1 January 2015: Employees, such as home health care workers, home care aides, certified nursing assistants who spend more than 20% of their time in a workweek assisting with activities of daily living (ADLS) such as dressing, grooming, feeding, bathing, toileting and transferring, or instrumental activities of daily living (IADLS) such as meal preparation, driving, light housework, managing finances, assisting with the physical taking of medication and arranging medical care.

Do here the self-assesment to find out if you are entitled to federal minimum wage and overtime.

Independent Contractors

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

Exempt from overtime pay are: employees providing "companionship services" for 80% or more of their workweek. This exemption is only available to the individual, family, or household solely or jointly employing the worker, the exemption is not available for third party employers or direct care workers (like home care staffing agencies).  Third party employers must pay their workers the federal minimum wage and overtime.

The law defines "companionship services" as the provision of fellowship and protection and explains that "companionship services" may also include the provision of care if the care is provided attendant to and in conjunction with the provision of fellowship and protection and does not exceed 20 percent of the total hours worked per person and per workweek. If caregiving tasks exceed 20% of the workweek, minimum wage and overtime must be paid.

"Fellowship" means to engage the person receiving services in social, physical, and mental activities. "Protection" means to be present with the person receiving services in his or her home or to accompany the person when outside of the home to monitor the person's safety and well-being. Examples of fellowship and protection may include: conversation; reading; games; crafts; and accompanying the person on walks, on errands, to appointments, or to social events.

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.

Wage and Hour Division: Domestic Service Final Rule Frequently asked questions.

Source:US Department of Labor.

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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