Home care agencies must begin to pay caregivers overtime as of October 13th, 2015. The Final Rule issued by Chief Justice Roberts prohibits third party employers, or home care agencies, from using the federal Companionship Services Exemption and Live-in Domestic Service Employee Exemption. As a result, companion and live-in workers who are classified as employees are now entitled to minimum wage and overtime protections for all hours worked in a given work week.
This blog post has been compiled to act as a 'Survival Guide' for home care agencies who need to quickly comply with the recent removal of the Companionship Exemption. We'll keep this blog post updated as new resources and information comes in. Please post any questions to this blog post and we'll keep the post updated. Keep in mind these are informational resources. Your state laws may differ. Any information on this page should not be substituted for local legal advice.
How ClearCare equips agencies with Overtime Alerts
WEBINAR: Preparing to comply with the Companionship Overtime Exemption
Notable Articles & Resources:
1. What if we didn't charge for Overtime? - by Stephen Tweed, Leading Home Care
2. Home Care Pulse survey responses related to the Companionship Exemption:
3. LinkedIN discussion group with Overtime-related posts (request to join the group for free is required)
When will enforcement begin?
The ruling has continued to be challenged -- should I just wait to see if this most recent ruling will stick?
How do I handle clients who are receiving live-in care?
What are strategies to help clients who need more than 40 hours per week?
What if a caregiver works 20 hours for one client and 21 hours for another client - are they entitled to overtime?
How does this law differ from what I need to do to comply with the Affordable Care Act?
Top tips from 3 leading attorneys.
Angelo Spinola, Littler Mendelson
DOL’s New Home Care Rule: Compliance Tips in a New Era for the Home Care Industry, by Angelo Spinola
On August 21, 2015, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Department of Labor's Home Care Rule, which excludes employees of third-party employers from the companionship and live-in domestic service worker exemptions to the FLSA’s overtime and minimum wage requirements. Accordingly, home care employers must now pay overtime or reschedule their employees so that they do not work more than 40 hours in a week. (Note that some states have more stringent overtime requirements.) Below are some key compliance tips to assist in reclassifying home care employees as non-exempt.
- Communicate any changes to pay to employees, and utilize agreements to memorialize compensation plans. Some states require a certain period of notice before changing rates of pay, so consult with an attorney.
- Develop a comprehensive compliance program. Include policies covering travel, sleep and meal periods, timekeeping and off-the-clock work and distribute the policies to all employees.
- Require employees to certify all working time. Timesheets or telephony scripts should include language requiring the employees to confirm that they have reported accurate and complete working time for the workweek. The employee’s certification should be retained in your records.
- Implement a proper complaint procedure, and clearly communicate the complaint procedure to employees.
Liz Pearson, PB Law
John Gilliland, Gilliland, McGuire, and Harper
Top tips from 3 leading agency owners.
Bob Roth, Cypress Home Care Solutions (Phoenix, AZ)
I have every staff member in my company keeping a time card now, even exempt employees with the new law coming down relative to overtime so at the very least I can track their hours and the employees can't say that they were not paid for the hours that they worked. Other tips we've implemented are:
- Off-the-Clock Policy: Prohibit managers from requiring, and employees from working,off-the-clock
- Travel Time Policy: Non-exempt home care aides will need to be paid for travel from one work site to another
- Sleep Time Policy: Employers can exclude up to 8 hours of sleep time from compensable hours worked for employees working 24 hours or more, if there is an agreement with employees
- Meal & Rest Break Policy: Reclassified home care aides will now have to take meal and rest breaks in some states
Handling Communications with Caregivers:
Handling Communications with Clients: