Direct hiring of senior caregivers by families continues to increase, and families have questions about minimum wage, overtime and whether to pay the elder caregiver when they are sleeping. US News and World Report recently noted that "by a 9-to-1 ratio, people prefer to stay in their homes as they get older rather than moving into an institution." They often become household employers as they hire individual home-care workers to help them age in place.
The following discussion is in regard to FEDERAL law. Many states extend the Federal minimum wage and overtime coverages. The stricter standard always applies!
Minimum Wage and Overtime
The Fair Labor Standards Act (FLSA) applies minimum wage and overtime protections to household or domestic service workers, with some notable exceptions.
Live-in Domestics: Domestic service workers who reside with their employers are exempt under the FLSA from overtime premiums. The live-in senior caregiver must have a defined hourly rate that meets or exceeds applicable minimum wage standards, must be paid for all hours on duty, they are simply not entitled under Federal law to the "time and one half" premium.
Companionship Exemption: Bona fide companions are exempt from both minimum wage and overtime in the FLSA, yet they remain employees subject to Social Security and Medicare taxation. The FLSA defines companionship services as "services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs." These services may include help with bathing, dressing, eating, etc. Some general household work may be performed but must be "incidental" - meaning no more than 20% of the caregiver's time may be spent in general household work for the exemption to apply. Where the 20% limitation is exceed the employee must be paid overtime. (NOTE: EFFECTIVE JANUARY 2016 PERSONAL CARE SERVICES ARE NO LONGER CONSIDERED EXEMPT COMPANION SERVICES, AND EXEMPT COMPANIONS EMPLOYED BY A FAMILY MAY NO LONGER PROVIDE GENERAL HOUSEHOLD SERVICES AND RETAIN THE EXEMPTION. PERSONAL CARE SERVICES MAY NOT EXCEED 20% OF THE SERVICES PROVIDED.)
Please note some states have stricter standards than the FLSA - in all cases of conflicting rules the stricter standard more advantageous to the worker will apply.
Many senior caregivers provide around the clock care for several days at a time. These caregivers typically do sleep when the individual requiring the care does. How is this time compensated?
The FLSA allows up to 8 hours of "sleep time" to be uncompensated for overnight care that is BOTH contiguous with a scheduled work day (24 hour+ shift) AND truly affords the senior caregiver a minimum of 5 hours of uninterrupted sleep.