Do I Need To Pay My Caregiver Overtime?

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• What Changed?
• Around-the-Clock Care
• Clear Contracts

In 2015, the Fair Labor Standards Act (FLSA) changed: Nationwide, in-home caregivers hired by an agency or third-party employer were now to be paid overtime. In-home caregivers and companionship services hired by a family or individual, however, would continue to be exempt. “But if a state overtime law is more protective of a worker than a federal law, the state law applies,” says Lori Goldstein, an employment & labor attorney in Northfield. “And Illinois law does not exempt caregivers—even if they work for a private family. It became confusing; caregiver agencies and families didn’t know who was exempt and who was not exempt.”

What Changed?

Effectively, nothing changed in Illinois, as state law already enforced overtime pay for all in-home caregivers. It did give home care agencies a scare, however. “The agencies were worried they were going to lose their businesses,” says Goldstein. “They thought the families were going to have a leg up on the agencies.” What makes the situation complicated, however, is that an in-home caregiver or personal attendants is not the same thing as a domestic service worker. In Illinois, a domestic worker employed by an individual or family is exempt from overtime pay. “Domestic service is different in that its housekeeping, babysitting, cooking, laundry—but it doesn’t include being a companion for somebody,” says Goldstein. “You can still be a caregiver who comes and goes,” she continues. “But if you’re doing something that is health-related or companion-related, it is not considered domestic service.” To further add to the tumult, Illinois has a general overtime exemption for employers that have fewer than four employees, but this exemption doesn’t include in-home care workers or home health aides, either.

Around-the-Clock Care

These days, many who need caregivers require someone who can work around the clock, though most households can’t afford to pay a worker literally all the time. When overtime gets thrown into the mix, it can get even more expensive, especially because the FLSA requires on-call pay. But the biggest issue for employers? Illinois has the One Day Rest in Seven Act labor law, which, Goldstein says, “means employees have to be given 24 continuous hours for sleep time in each workweek.” She adds that many hire more than one caregiver, using multiple part-time workers to resolve the issue.

Clear Contracts

Goldstein notes that, above all, a clear contract is key. That means outlining just what the hourly rate for overtime pay is—time-and-one half time for each hour over 40, or an annual salary for a certain amount of hours plus half-time pay. “You have to be really clear in your contract about what the schedule is, what hours you’re getting paid, when you’re going to get paid and overtime rules,” Goldstein says. “You have to be very concerned about what’s considered actual worktime. [For example], you can agree that you’re going to sleep eight hours at night. … You can agree to pay or not pay for certain off-duty times.” If you’ve hired an in-home caregiver and are unsure about regular rate of pay and overtime pay, or how to set up a clear contract, reach out to an experienced employment attorney in Illinois. An employment law lawyer can answer your questions about overtime requirements, independent contractors or health care. For more information about this area, see our overviews on employment law for employers and wage and hour laws.