Wednesday, September 18, 2013

Home health caregivers will be protected by federal minimum wage, overtime rules by 2015

Amanda Becker, of Reuters, is reporting that the Obama administration has decided to apply the federal minimum wage law for home health aides, starting in 2015.  The federal minimum wage now is only $7.75 an hour.  The link is here. The New York Times has also reported on the matter Wednesday (Steve Greenhouse) here
If you do the math, it appears that 24 hours of hired caregiving would cost about $200 a day or a little over $6000 per month.  With Mother, who passed away in December 2010, the 24-hour bills in the last three months were about $12000 a month with two different home health agencies, so I know that the minimum wage could have reasonably been paid.  Minimum wage laws for caregivers do exist in 21 states and in Washington DC. 
The article says that exemptions will still apply for some workers hired directly by the family.  That part sounds murky to me.  However, it has long been true that families can save money by hiring home health themselves, but then they have to deal with all the employment paperwork, deductions, and immigration status verification.  Hiring directly can sometimes present other legal conflicts, since one is directly the caregiver’s “boss”. 
It's not immediately clear how this change would apply to "live-in's",  

Of additional concern is overtime for home health workers.  The article implies that Fair Labor Standards Act overtime rules will apply, so it could take up to five workers on rotating shifts to cover an entire week without an agency’s incurring overtime liability.  The agencies I used charged time-and-a-half on holidays and slightly more on weekends and evenings, but the rates did not appear to follow overtime rules as in the FLSA.  The Supreme Court had ruled on this with an important case in Long Island, covered earlier, in 2007.
Lawyers had told me that it is possible for a client to be held responsible for overtime directly if he or she knows or reasonably suspects (from the math) that a home health agency is breaking the law.  Home health agencies normally must check and verify immigration or “green card” status, and have become much more careful about this since 9/11.  Still, a family that knows that immigration law has been broken might be criminally liable. 

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