Are Home Health Care Aides Entitled to Overtime Pay?

This is a particularly important issue for residents of New York City because it is estimated that 1 in 7 low-wage workers in New York City is employed as a home care worker.  Generally, the Fair Labor Standards Act extends minimum wage and overtime pay requirements to “domestic service” employees (e.g., cooks, housekeepers, maids gardeners, babysitters, etc.), however, the FLSA does not cover those employees who provide “companionship services.” – which is the primary responsibility for most Home Health Care Aides.  This is what is more commonly known as the “Companionship Exemption.”  So the answer is no, Home Health Care Aides are not required to be paid overtime compensation.

The FLSA’s “Companionship Exemption” 

As a result of this exemption, individuals employed as professional caregivers  for those that cannot take care of themselves because of age or infirmity – whether they are employed directly by a family or by a third party agency – are not covered by the minimum wage or overtime provisions of the FLSA.  “Companionship Services” is defined as “fellowship, care and protection” for a person who include cannot care for their own needs and can include household work such as meal preparation, bed making, washing of clothes, and other similar services.

While these employees are NOT currently entitled to minimum wage or overtime, change is on the horizon as the U.S. Department of Labor has proposed amending the rules applicable to the Companionship Exemption to (i) more clearly define the the tasks that can be performed by a domestic companion (basically to exclude general household work by limiting the definition of companionship to fellowship and protection) and (ii) limit the exemption to those domestic companions that are employed by the family and NOT health care staffing agencies.  If you have additional questions about the DOL’s proposed changes to the Companionship Exemption, there is a helpful FAQ page that may be able to answer your questions.

Home Health Care Aides and the New  York Labor Law

While the New York Labor Law generally adopts the exemptions contained in the FLSA, the New York Labor Law requires that otherwise exempt employees be paid at least at last 1.5 times the minimum wage for any hours worked in excess of 40 in a given week, regardless of whether an employee is classified as exempt.  The minimum wage in New York is currently $7.25/hour, so an otherwise exempt Home Health Care Aide must be paid $10.88/hour for each hour worked beyond 40 hours in a given week to comply with the New York Labor Law.  So if your normal rate of pay is less than $10.88/hour, you may be entitled to additional compensation, however, if your normal rate of pay exceeds $10.88/hour, then you will generally not be entitled to any additional compensation.

Registered Nurses are Generally NOT Entitled to Overtime Compensation

Registered nurses (but not licensed nurses) likely fall under the FLSA’s and New York Labor Law’s “learned professional” exemption if they are paid on a salary basis.   So if a Registered Nurse is paid a fixed salary and provides in home health care services (including companionship services), they are likely excluded from the overtime requirements of the FLSA and New York Labor Law.

If you are employed as a Home Health Care Aide, whether you are entitled to overtime compensation depends largely on all of the facts and circumstances related to your employment and you should consult with an attorney for additional information.  If you have additional questions or would like to be connected with an attorney that may be able to help you, fill out this form:

About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.
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7 Responses to Are Home Health Care Aides Entitled to Overtime Pay?

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