Wyatt Employment Law Report

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Minimum Wage and Overtime Laws to be Applied to Home Care Employees

By Douglas L. McSwain

The U.S. Department of Labor (DOL) has adopted a new final regulation that extends minimum wage and overtime protections to direct care employees of home care agencies and other third parties.  Direct care workers include those who provide essential home care services such as home health aides, personal care aides, and certified nursing assistants.  An estimated two million additional direct care workers in the U.S. are expected to be covered by this new rule.

The final regulation will take effect January 1, 2015, so employers have time to consider its implications unless their direct care workforces are already covered by a state minimum wage or overtime law.  Fifteen states extend both minimum wage and overtime protection to direct care workers, and an additional six states, plus the District of Columbia, extend minimum wage protection. 

The DOL’s new regulation does not sweep within its protection every person who provides companionship services or assists another within a home setting.  Many comments were submitted to the DOL raising questions about the potential scope of the proposed rule, particularly as to its potential impact on those who merely provide companionship. The result in the DOL’s final rule was to extend protection to those performing medically-related services for which training is typically a prerequisite, but not to workers who are employed only by the person receiving services or his/her family or household and who primarily perform fellowship and protection activities, or care incident to these activities, such as providing company, visiting or engaging in hobbies, etc., with the person receiving services.