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.
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.