In early 2016, the U.S. Department of Labor (DOL) issued what it calls the “Home Care Final Rule.” The DOL is the agency charged with enforcing the Fair Labor Standards Act (FLSA), the federal law that, among other things, gives workers the right to receive minimum wages and overtime pay.
Until now, the FLSA did not necessarily require that employers pay minimum wage and overtime to home care workers. Not surprisingly, in 2009, a report co-authored by National Employment Law Project (NELP), found that “nearly 83 percent of home care workers reported overtime violations, 90 percent reported off-the-clock violations (working before or after shifts without getting paid), and nearly 18 percent reported minimum wage violations.” With the implementation of the new final rule, “home care workers have the same basic wage protections as most U.S. workers, including those who perform the same jobs in nursing homes and group homes.”
There are few exceptions to this rule, and even those receive very narrow interpretations. The purpose of the DOL’s ruling is to ensure that home health care workers receive fair pay for the important work they perform. Exemptions and wage calculations in the home health care industry can be confusing due to the unique nature of in-home work. Consider the following questions that may arise: What is time spent working? What about live-in help? Do you get paid for time spent sleeping? Do specific duties matter? What if you are a family member? Who is the employer?
The DOL issued the home care final rule partly in response to the recent upswing in the number of unpaid wage claims filed by health care workers. As our population ages, at-home care is a growing industry employing thousands and thousands of people in New York and across the nation. As NELP points out, home care workers seem to be the victims of routine wage violations.
For example, employers often attempt to classify home care workers as independent contractors making them exempt from many rights under the FLSA such as overtime pay. While this is occasionally true, the DOL Home Healthcare Guide states that “Generally, under the FLSA, most workers are employees and not independent contractors.” Home care workers, whether employed by an agency or directly by a family should be aware of their rights, so they know what they are legally entitled to receive.
In the fall of 2016, the employees of First Chinese Presbyterian Community Affairs Home Attendant Corp filed a class action lawsuit against their employer. The company places trained caregivers with patients who need at-home medical care and supervision and employs thousands of workers in the New York metropolitan area.
About 40 employees allege that the company forced them to work 96 hours a week or more and that they received less than minimum wage for half of the hours. The workers claim that the agency told them they were not entitled to wages for the hours they put in overnight because they could sleep. The workers, however, argue that the job require them to provide care during the night and be constantly on alert. The patients, they say, actually need 24-hour care. They must be turned in their beds, taken to the bathroom, given medication and supervised throughout the night.
The suit also alleges that the company retaliated against workers who refused to work 24-hour shifts by giving them few hours. The workers are demanding that the agency pays them back wages.
Home health care workers are some of the most underpaid and overworked people in New York City and the surrounding counties. If you are a home care employee, understand your rights to minimum wage and overtime pay by contacting an unpaid wage attorney at Leeds Brown, Law, P.C. For more information about the Home Care Final Rule, the FLSA or other wage and hour issues, call Leeds Brown at 1-800-585-4658.
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