As mentioned in the
story on page 3, the U.S. Supreme Court has confirmed that “companionship” workers
who provide in-home care for elderly or infirm individuals are exempt from the
minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA),
whether they’re employed by the individual they care for (or their household)
or an agency or other third-party employer. If you employ such home health
aides, here are some tips for ensuring they qualify for exemption.
Paying Overtime: 10 Key Exemption Concepts
Only one thing really matters in the determination as to whether or not an employee is exempt: The duties the employee performs. Learn how to avoid costly, preventable mistakes with our free White Paper, Paying Overtime: 10 Key Exemption Concepts.
1. Check state rules. Some states have
stricter rules that may limit the exemption. For example, as explained in the
main story,
permits an overtime exemption for “personal attendants,” but they must still be
paid the minimum wage.
2. Watch duties. Job descriptions and
contracts (between the agency and client) should specify the permissible
duties, plus state that the employee will not be required to spend more than 20
percent of his or her weekly time on general household work. That’s because the
exemption will be lost if companionship employees spend more than 20 percent of
their time each week performing general household work that’s unrelated to the care
being provided. This includes dusting furniture, vacuuming, washing floors or
windows, or cleaning refrigerators and ovens. These employees can, without
limitation, perform services that provide fellowship, care, and protection for
an elderly or infirm person who can’t care for his or her own needs along with
services related to the care, such as preparing meals, making beds, and washing
clothes.
3. Use time sheets. If a companionship
worker will be performing any general household work, be sure to require the
worker to fill out a time sheet specifying his or her daily activities. That way,
you can monitor the duties to ensure that nonexempt duties don’t amount to more
than 20 percent of the work.