Classifying Home Health Care Workers

Atlanta is replete with people who work in the field of home health care. Home health care workers have a special set of regulations under the Fair Labor Standards Act.

For instance, a home health care worker may or may not be entitled to overtime pay, depending on the circumstances of employment.

First, the definition. A home health care worker is someone who provides home health care services for individuals who (because of age or infirmity) are unable to care for themselves. They may be employed by the household itself, or an agency, or may just freelance.

People employed in domestic service in households are covered by the FLSA. Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term “domestic service employment.” Under some circumstances, however, some of these employees may be covered by minimum wage but not by overtime laws.

If the home health care worker is a nurse, then the nurse exemptions and regulations apply. Certified nurse aides and home health care aides may be considered exempt from the FLSA’s wage requirements on a case- by- case basis depending on the nature of their work.

According to a July, 2008 DOL fact sheet, an employee who performs companionship services in or about the private home of the person by whom he/she is employed is exempt from the FLSA’s minimum wage and overtime requirements if all criteria of the exemption are met.

“Companionship services” means services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves. Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services.

So– what if a part of the domestic services includes maid services?

General household work is included under the “companion” definition, as long as the household work does not exceed 20 percent of the total weekly hours worked by the companion. Where this 20 percent limitation is exceeded, the employee must be paid for all hours in compliance with the minimum wage and overtime requirements of the FLSA.

There are other regulations that involve defining the difference between “babysitting” versus “companion” to children in the household. Only an employment law firm like Buckley Bala Wilson Mew LLP can advise any domestic workers, health workers or otherwise, on the ins and outs of all of those government regulations.