Most home health care workers must be paid minimum wage and overtime pay. Minimum wage in New Jersey is $12.00 per hour and in New York City, it is $15.00 per hour. If a worker works more than 40 hours in a week, they are entitled to overtime pay which is one and a half times their regular rate of pay for each hour over 40. If overtime pay is due, the worker must receive it for every hour worked over 40 hours in a workweek.
Home care workers could be direct hires of an individual or family or they can be hired through a home health care agency. There are some exceptions to the minimum wage and overtime pay requirements for certain types of health aides. The type of work that the aide regularly does can affect whether or not the aide should be exempt from being paid minimum wage and overtime.
For example, there are certain exemptions to overtime pay for live-in home care workers. A live-in home care worker is entitled to minimum wage, but is not required to receive overtime pay in the following three special circumstances: (1) if they permanently live in the home of the person they are caring for seven days per week; (2) live there for extended periods of time, which is considered to be either five days a week for 120 hours or more; or (3) live in the home for five consecutive nights for less than 120 hours per week. A live-in worker does not have to be paid for time he or she spends eating or sleeping or other periods in which she has no duties to perform. When starting a new home care assignment it is very important to establish an agreement regarding a schedule concerning sleep time, meal breaks and other periods of off-duty time.
There are additional pay exemptions applicable to home health aides who provide companionship services. The companionship service exemption only applies if (1) the home care worker spends a maximum of 20% of the working time assisting with personal care such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.; (2) the worker does not perform any medically related tasks that are usually done by a nurse; or (3) the worker does not perform any general household work for other members of the household besides the one that the worker is taking care of, such as laundry or cooking.
Also, some home care workers are paid a daily or weekly rate instead of an hourly wage rate. Just because an employee is compensated with a daily or weekly rate, and not an hourly wage rate, does not mean that employee is not entitled to overtime pay. All eligible employees are entitled to overtime pay. If you are not paid by the hour, in order to calculate your overtime pay rate, you divide your total weekly salary by the number of hours you worked in the week, which gives you your regular hourly rate. Then you multiply the hourly rate by 1.5 and multiply that times the number of hours over 40 that you worked in that week, which gives you the total overtime pay you are owed for that week.
Lastly, the law requires home health care agencies to maintain accurate records of each employee’s daily and weekly hours worked per week, but many agencies do not do so. This makes it more difficult for employees to make a claim against their employer for unpaid wages. Therefore, it is important for each employee to keep their own records of the time they begin and end work each day in case the employee needs to make a claim for unpaid wages. The employee should also keep records of the total pay they receive each week, whether it is by check, cash or both.