Am I entitled to federal minimum wage and overtime pay?
Effective January 1, 2015, the minimum wage and overtime pay protections of the Fair Labor Standards Act are extended to most direct care workers.
The Department of Labor has created this checklist to help you determine whether or not you are required to receive at least the federal minimum wage and overtime pay. Read each question in order, click yes or no, and get a response that is specific to your situation.
Are you employed by anyone other than the person you assist or that person's family or household (for instance, a home care agency or other entity)?
You must receive at least the federal minimum wage and overtime pay if you are employed or jointly employed by any employer other than the person receiving your services or that person's family or household. That other employer (rather than the person, family, or household) is responsible for ensuring that you receive the federal minimum wage and overtime pay for all hours worked. There's no need for you to answer any further questions.
See also:
- Fact Sheet 79-A: Companionship Services Under the Fair Labor Standards Act
If you are employed solely by the person being assisted or that person's family or household, you may or may not be entitled to the federal minimum wage and overtime pay, depending on job duties. Continue to the next question.
Do you provide domestic services that are primarily on behalf of other members of the household, such as doing laundry for another family member or preparing meals for someone other than the person being assisted?
Yes, you must be paid at least the federal minimum wage and overtime pay in any workweek when you perform domestic work that is primarily for the benefit of others besides the person being assisted. There's no need for you to answer any further questions.
See also:
If the work you perform primarily benefits only the person being assisted, then you may or may not be entitled to the federal minimum wage and overtime pay. Continue to the next question.
Do you provide medically related services that typically require and are performed by trained medical personnel? These are services that may be invasive, sterile, or otherwise require exercising medical judgment, such as assisting with tube feeding or catheter care.
Yes, you must be paid at least the federal minimum wage and overtime pay in any workweek when you perform medically related services that typically require trained medical personnel (like a licensed practical nurse, certified nurse assistant, etc.). Even if you haven't had the required training or have a different job title, you are still covered by the minimum wage and overtime pay protections if performing these services. There's no need for you to answer any further questions.
See also:
If you do not provide this level of medically related care, then you may or may not be entitled to the federal minimum wage and overtime pay. Continue to the next question.
Do you spend more than 20% of your time in a workweek assisting with activities of daily living (ADLs) (such as dressing, grooming, feeding, bathing, toileting, and transferring) or instrumental activities of daily living (IADLs) (such as meal preparation, driving, light housework, managing finances, assisting with the physical taking of medications, and arranging medical care)?
Yes, you must be paid at least the federal minimum wage and overtime pay in any workweek when you spend more than 20% of your time assisting with activities of daily living (ADLs) or instrumental activities of daily living (IADLs).
See also:
If the answer to every question has been "no", then it is likely that you are not required to be paid the federal minimum wage and overtime pay. Generally, a worker is not entitled to federal minimum wage and overtime pay if the worker:
1. is employed in a private home solely by the person being assisted or that person's family or household, and
2. provides "companionship services" to a person who needs assistance in caring for himself or herself, such as an elderly person or someone with an illness, injury, or disability. Companionship services include providing fellowship and protection (defined as engaging the person in social, physical, and mental activities such as conversation, reading, games, etc., and being present with the person to monitor his or her safety and well being), and may also include assisting with ADLs and IADLs, as long as this assistance isn't more than 20% of the time worked in any workweek.
See also:
- Fact Sheet 79-A: Companionship Services Under the Fair Labor Standards Act