July 9, 2012

Home-Care Providers Need Pay Adjustment

BENDER

As the federal government considers removing or revising the Fair Labor Standards Act (FLSA) companionship exemption for employees of home care companies, it should consider why the exemption was written in the first place.

The exemption, which has been around since 1974, refers to labor rules that exclude workers who provide "companionship services to the elderly or disabled from the federal minimum wage and overtime protections that apply to most other American workers."

According to Wikipedia, the main purpose of that exemption was to expand labor protections to domestic workers, with two exceptions included: one for those serving as "casual" babysitters and another for those providing "companionship services for individuals who (because of age or infirmity) are unable to care for themselves."

Congress believed those situations were different from standard employment, and passed the exemption before in-home senior care organizations existed. The exemption is superseded in 14 states, including Massachusetts, where companies must pay overtime if warranted.

Long shifts, which can last 24 hours or several days, without payment of minimum wage and overtime for hours worked, do not provide good care or a satisfactory work environment.

However, in-home senior care differs from regular jobs in that it may include a stretch of hours when the caregiver is required to be there but essentially without duties. This is more of an on-call situation than direct work. It occurs most often during overnight shifts when the employee has his or her own accommodations and is rarely required to help the client. It's analogous to on-call situations with supervisors or physicians at night. In both cases, the person "on call" may be required to attend and perform work. In general, they're paid a stipend to be on call and regular wages for worked time.

A shift like this can be very beneficial to a senior citizen who may need assistance in getting to the bathroom overnight, and help getting to bed and getting up in the morning. It can also be very attractive to people like students who can study and sleep while the client is asleep. The sleep time should be paid as an on-call block that doesn't count toward overtime, with the mornings and evenings considered regular time.

Most in-home senior care provided by employees of a third-party company (as opposed to care providers hired by family members) should be subject to the usual minimum wage and overtime provision such as those of other jobs. Sleep time should be considered on call and not included in overtime calculations, although it should be compensated.

If the FLSA is to be revised, it should include this provision, and states should apply it in their own laws. Doing so will allow both seniors and employees to benefit from the unusual circumstances of in-home senior care while supporting the development of an industry that provides good jobs and much-needed support for seniors in their homes.

Bruce L. Bender is a fellow of the American College of Physician Executives and owns Home Instead Senior Care of Northborough and Natick.

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