Care Givers and Personal Attendants
The overtime laws for people who work as care givers, personal attendants, child care workers, or other types of attendants can be complicated. This page will discuss the basics of this type of work.
There are a wide variety of care provider jobs, from child care workers to those that work with the disabled or handicapped as well as the aged. The positions can require that the employee live on-site at the facility or only report to work; each arrangement has its own unique issues.
Before we get into the various laws, I want to state what is NOT covered in this page. If you work as a Registered Nurse, you are entitled to overtime, so you do not need to read this page. If you work as a personal assistant, cook, maid or other type of personal servant, you are likely entitled to overtime, but this type of work is not covered on this page.
You should also note that in this industry, there are frequently minimum wage violations as well as overtime violations. In general, even if you are exempt from overtime pay in this industry, you are likely still entitled to minimum wage. However, I can not address every minimum wage issue here and will focus more on overtime.
Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome.
The most important rule of overtime law is that everyone is entitled to overtime unless they meet an exemption. Thus, while there are many types of jobs in this field, and it is not possible for me to cover every one of them, if your job is not listed or does not fit inside one of these exemptions, you are likely entitled to overtime. The following will break down the various types of exemptions based on different factors. The most important factor is whether you work in a private household or in a care facility.
A private household is any person's private home. Specifically, it does NOT include any type of group home, old-age home, or other property operated as a business to care for people. It also does not include any type of not-for-profit institution, even if the facility was once used as a residential house. That is, the type of business determines whether or not you are employed in a "private household," and not the structure of the building. For instance, if a private residence is converted into a home for the disabled and operated by a business or not-for profit organization, you are not employed in a "private household" and this section does not apply to you.
If you do work in a private household, then the type of work that you perform is the next step in determining whether you are entitled to overtime. If your work is limited to feeding, dressing or supervising a child, aged, or disabled person, who because of their age or disability needs supervision, you are not entitled to overtime. An exact list of every single duty that qualifies as "feeding, dressing, or supervising" a person is not possible. However, the following are generally accepted as falling within this exemption:
- Getting into/out of bed or chair
- Using a toilet
- Assisting in obtaining medical care (but not actually administering the medical care)
- Preparing meals for the supervised person (not the entire family)
- Managing personal finances
- Assisting with other daily activities which can not safely be performed by the person alone.
The main issue with the above list is whether general house cleaning chores qualify as exempt work or not. In general, light house keeping and cooking duties will qualify as exempt work. However, if the amount of actual cooking and cleaning exceeds 20% of the total work time, the exemption will be lost and you will be entitled to overtime. In addition, if you spend more than 20% of your time on nurse-like duties such as giving medication, taking temperatures, checking pulse, etc, then you are entitled to overtime.
This exemption applies whether you are employed by the family you work for or though some type of agency. It also applies if the agency sends you to more than one family in a week.
A public facility is anything that is not a private household. This includes rooming houses, hospitals, sanitariums, houses for the aged, disabled, or handicapped, child care centers, recreational camps, or any other type of care facility. If you work in a public facility, you will be entitled to overtime after 8 hours in a day or 40 hours in a week unless you are in one of the following occupations:
- Organized Camp Counselors of seasonal camps-- only get overtime after 54 hours in a week.
- Resident Managers of homes for the aged with less than 8 beds do not get daily overtime (after 8 in a day), but do get weekly overtime (after 40 in a week).
- Personal attendants of a not-for-profit organization do not get daily overtime, but do get weekly overtime.
- Facilities which house the sick or disabled can institute a two-week period for overtime. That is, you don't get overtime until 80 hours are worked in a two-week period. You must still get overtime after 8 hours in any day. Employees must agree to such an arrangement prior to starting work under such a schedule.
Even if you are entitled to overtime, your employer may have instituted what is know and an Alternative Work Week Schedule. If employers hold elections that follow strict rules, an employer can institute a work schedule such as 4 days of 10 hours each or, if in the health care industry, 3 days of 12 hours each. If your employer has such an schedule in place, then they need not pay daily overtime until after the scheduled number of hours. However, they must always pay overtime after 40 hours in a week.
The election could have taken years before you started your employment at the company, and you don't have any right to have your vote counted once the election is closed. If your employer does have such a schedule, it must be registered with the Division of Labor Statistics and Research. You can look up whether your employer has such a policy in place here. If they are not registered on that list, then the election likely was not valid and it will not be upheld even if the company has a published policy regarding the work schedule.
The care provider industry is rampant with labor violations. Many people work long hours without proper pay. If you feel that you are entitled to overtime and are not getting it , you should contact me immediately.