WAGE AND HOUR DIVISION
UNITED STATES DEPARTMENT OF LABOR
Paying Minimum Wage
and Overtime to
Home Care Workers
A Guide for Consumers and their Families
to the Fair Labor Standards Act
Introduction
■ Who needs this guide ............................................................................4
■ Overview ...............................................................................................8
Who needs to follow the FLSA rules
■ When you must pay minimum wage and overtime .............................12
■ Exemption from minimum wage and overtime rules ..........................19
■ Employment of family members as home care workers ..................... 22
■ Live-in home care workers .................................................................24
How to follow the FLSA rules
■ Minimum wage ...................................................................................30
■ Overtime pay ....................................................................................... 32
■ Hours worked ......................................................................................35
■ Recordkeeping ....................................................................................36
■ Consequences of not complying with the FLSA ................................. 39
Other resources
■ Checklists for paying home care workers properly ............................42
■ Additional information ........................................................................ 44
Table of Contents
This guide is meant to help individuals, families, and households
that use home care services determine their responsibilities under the
Fair Labor Standards Act (FLSA), the federal minimum wage and
overtime law that applies to most home care workers.
Introduction
4 5
YOU may be an individual who has a home care worker living
with you or who arranged for a home care worker to live with a
family or household member who needs services.
If this describes you, see the Live-in Direct Hire
Checklist on page 42.
YOU may be an individual who goes to an agency to nd a worker
to provide in-home support for yourself or a member of your family
or household. Perhaps you pay the agency for the worker’s services
with private funds, or perhaps you receive public assistance, such
as through Medicaid. Perhaps the agency sends a worker who
moves into your home.
If this describes you, see the Agency Checklist on
page 43.
YOU may be an individual who receives (or helps a member of
your family or household arrange) in-home personal care or other
services through a Medicaid-funded self-directed program. Perhaps
the worker you select lives in your home.
If this describes you, see the Self-Directed Checklist on
page 43.
YOU
When we refer to “you” in this guide, we mean a consumer who uses
the services of a home care worker.
We also mean any family member of a consumer who helps manage
those services. Managing the services could include selecting the
worker, setting the worker’s schedule, determining what tasks the
worker should perform and when, paying for the worker’s services,
etc.
“You” also means any member of the consumer’s household, such as
a domestic partner or other person who lives with the consumer, who
helps manage the services.
We have created checklists to help you keep track of your obligations,
found at the end of this guide.
YOU may be a senior or a person with a disability, or a member of
the consumer’s family or household, who directly hires a worker to
provide in-home support. Perhaps you used a registry or a website
to nd your worker, or perhaps you selected someone you already
knew, such as a family member.
If this describes you, see the Direct Hire Checklist on
page 42.
Who needs this guide?
6 7
HOME CARE WORKER
When this guide refers to “home care workers,” we mean workers who
provide certain types of services in private homes.
Home care services are fellowship and protection, personal care, and/
or health-related services, such as assisting a consumer with:
Dressing Grooming Bathing
Cleaning
Tube feeding Injections
Cooking
Other daily
activities
Other medically
related activities
Who needs this guide?
Home care services are provided in a consumer’s own home. Personal
care and/or health-related services that are provided in a group home,
nursing home, residential care facility, or hospital are NOT home care
services.
Home care workers are called by a number of different job titles,
such as home health aide, personal care attendant, certied nursing
assistant (CNA), provider, or caregiver.
Home care workers may live in or live outside your home; they may be
family members, friends, or people you didn’t know before they began
providing services; they may be paid with private funds, Medicaid
funds, or some other combination.
Fellowship
&
protection
Health-
related
services
Personal
care
Hobbies Games
Keeping
company
8 9
Why did the Department of Labor
publish the Home Care Final Rule?
This guide is about your responsibilities under the Fair Labor
Standards Act (FLSA). The FLSA is the federal law that gives
most workers in the United States minimum wage and overtime pay
protections. We at the U.S. Department of Labor enforce the FLSA,
and we recently updated the FLSA rules about home care workers.
Under the new rules, most home care workers must now be paid
at least the federal minimum wage, and overtime pay. We call this
change the “Home Care Final Rule.”
If you use or help manage the services of a home care worker, you
may be responsible for paying minimum wage and overtime, and for
keeping certain records regarding your home care worker(s). This
guide will help you understand if you have those responsibilities and,
if you do, how to make sure you pay your home care worker properly
under the FLSA.
If you employ a home care worker, you may also have other
responsibilities under other laws—such as IRS requirements,
Medicaid regulations, or state employment laws—but this guide is
NOT about those laws. This guide is only about the federal minimum
wage and overtime law.
Overview
The Home Care Final Rule makes sure that home care workers
have the same basic wage protections as most U.S. workers,
including those who perform the same jobs in nursing homes and
group homes. Better wages for home care workers will also help
to ensure that consumers have access to high-quality care in their
homes from a stable workforce.
Who needs to follow
the FLSA rules
12 13
Am I an employer?
If YOU hired the home care worker directly, and no agency
or other organization is involved, then you are an employer.
YOU must ensure that you are following FLSA rules.
If you set the worker’s schedule, tell the worker what
tasks to do or when to do them, and/or can hire or re the
worker, you could be an employer under the FLSA. That
means YOU must comply with the FLSA even if an agency
provides the worker. Although those facts do not make you
an employer for all legal purposes, they do mean you are
an employer for purposes of the FLSA.
Example: Direct hire
Diana places an ad on a website offering to work as a personal
care attendant. Olivia, an individual with a disability who needs
personal care services, sees the ad and calls Diana to set up an
interview. Olivia likes Diana, so she hires her. Olivia and Diana
agree on Diana’s schedule, rate of pay, and job duties.
In this example, Olivia is Diana’s employer. Olivia must follow
the FLSA rules described later in this guide.
Olivia
Diana
See joint
employ-
ment:
page 18
Most home care workers must be paid at least the federal
minimum wage and overtime. The relevant question is
often who is responsible for making sure these workers
are paid according to these FLSA requirements. Whether
you are responsible for the worker being paid federal
minimum wage and overtime depends on whether you are
an “employer” as dened by the FLSA.
EMPLOYER
It is necessary to look at many facts about a worker’s job to
determine who is the worker’s employer under the FLSA.
Although many facts matter, anyone who sets the worker’s
schedule, tells the worker what tasks to do or when to
do them, and/or can hire or re the worker could be an
employer of that worker. This is true even if someone else
is also an employer (that is, if there’s joint employment).
Knowing whether YOU are an employer is important
because if you are, you are responsible for making sure that
your home care worker is paid according to the FLSA rules.
Even if you are not considered an employer for other
purposes or under other laws, such as paying taxes or
according to Medicaid, you may still be considered an
employer under the FLSA. This is because courts have
dened who is an employer very broadly under this law.
See
minimum
wage and
overtime:
page 30
When you must pay minimum
wage and overtime
See
Direct
Hire
checklist:
page 42
14 15
Example: Joint employment with agency
Joe needs assistance with daily activities such as
dressing and preparing meals so he can live on his
own. Joe calls Home Care Agency, which sends a
personal care attendant named Marcus to Joe’s home.
Home Care Agency trained Marcus, sets Marcus’s
pay rate at $10 per hour, writes Marcus’s paychecks,
and could re Marcus. Joe decides how many hours of
services Marcus should provide to Joe each day and
tells Marcus what tasks to perform (such as when Joe
wants to bathe, what he wants to eat, where he wants
to go during the day, etc.).
In this example, Home Care Agency is Marcus’s
employer under the FLSA, and Joe is also Marcus’s
employer under the FLSA. That means Home Care
Agency and Joe are both responsible for making sure
that Marcus receives federal minimum wage and
overtime pay. Marcus only has to be paid once, but
both Home Care Agency and Joe must make sure he is
paid according to the FLSA rules.
Agency
Joe
Marcus
If YOU hired the home care worker through an agency,
you are probably an employer of that worker. Under the
FLSA, an employee can have more than one employer—
in this case, both the agency and you. (We call this “joint
employment.”)
If you and an agency jointly employ a home care worker,
you may rely on the agency to pay the worker and keep
required employment records. As an employer under the
FLSA, the agency is responsible for following the FLSA
rules. But remember that if you are also an employer under
the FLSA, you are also personally responsible for any
wages that are owed to the worker under the minimum
wage and overtime law. This does not mean that the worker
gets paid twice—it simply means that if either responsible
party does not pay the worker, the other “joint employer” is
responsible for paying them.
See joint
employ-
ment:
page 18
When you must pay minimum
wage and overtime
See
Agency
checklist:
page 43
See joint
employ-
ment:
page 18
See
record-
keeping:
page 36
16 17
If YOU self-direct your services, you are likely the home
care worker’s employer and YOU must comply with the
FLSA. (There may be another employer as well, such as a
state agency or non-prot organization that participates in
arranging the services. This is another example of “joint
employment.”) As an employer under the FLSA, you may
use a scal intermediary to help meet your responsibilities,
such as by taking care of payroll or tracking hours.
Sophie, a senior citizen, needs assistance with daily activities
(such as dressing and meal preparation) so she can remain in
her home. She enrolls in a self-directed waiver program with
full budget authority (cash and counseling) offered by her state.
She selects her neighbor to be her paid care provider. Sophie’s
neighbor records his work hours and submits that information
to a scal intermediary, which pays him at the wage rate Sophie
has selected. Sophie tells her neighbor what tasks she needs him
to perform.
In this example, Sophie is her neighbor’s employer, and she is
responsible for paying him according to FLSA requirements.
Example: Self-direction
When you must pay minimum
wage and overtime
See
Self-
Directed
checklist:
page 43
Most home care workers are employees,
NOT independent contractors.
Some employers misclassify home care workers as “independent
contractors.” Whether this label is used correctly for purposes
of the FLSA depends on whether you are (or someone else is)
an FLSA employer as described in this guide. In other words, it
depends on the relationship between you and the worker, not the
worker’s title (including if the worker is called an “independent
provider”) or their status under other laws. Generally, under
the FLSA, most workers are employees and not independent
contractors.
For more information on determining if someone is an
independent contractor, see Fact Sheet #13: Am I an
Employee?: Employment Relationship Under the Fair
Labor Standards Act (FLSA).
www.dol.gov/whd/regs/compliance/whdfs13.pdf
18 19
Joint employment
Exemption from minimum
wage and overtime rules
In some limited circumstances, consumers and their families or
households are not required to pay a home care worker federal
minimum wage and overtime pay. If a home care worker provides
mostly fellowship and protection, which means she spends most of
her work time watching over the consumer and keeping the consumer
company, then an exemption from the wage requirements might apply.
We call this the “companionship services exemption.”
Any employer other than you (like an agency) must always pay federal
minimum wage and overtime. If a home care worker is employed by
an outside employer, such as a home care agency, then that employer is
responsible for paying the worker at least the federal minimum wage
and overtime pay even if you are not.
The companionship services exemption is narrow. You may use it
only if:
Your home care worker spends no more than 20% of
his or her total working time in a workweek assisting
with personal care, such as bathing, dressing, toileting,
grooming, cooking, cleaning, etc.;
The worker does not perform any medically related
tasks, which are tasks that are usually done by a nurse
or certied nursing assistant, such as tube feeding or
catheter care; or
The worker does not perform any general household
work that is mostly for members of the household other
than the consumer, such as doing laundry or cooking
meals for the entire household.
Guidance on joint employment situations is available on
our Home Care website.
www.dol.gov/homecare/joint_employment
Under the FLSA, a home care worker might be employed
both by the person receiving services (or his or her family or
household) and an outside employer, such as an agency. This is
called joint employment. For example, a family and a private
home care agency could both employ a personal care assistant.
Or, in a consumer-directed program run through a state
Medicaid agency, a person receiving home care services and the
state agency administering the program could both employ a
home health aide.
In these situations, we call the agency the third party employer.
Third party employers always have to pay home care workers the
federal minimum wage and overtime compensation.
When a worker has more than one employer, each employer is
responsible for making sure the worker is paid according to the
FLSA rules, but the worker only has to be paid once. So if an
agency pays your home care worker properly, your obligations are
met—but if it doesn’t, you could have to pay the wages owed.
20 21
Under the FLSA, Brianna is employed both by ABCD and by
Violet. Regardless of the duties Brianna performs, the agency
must pay Brianna at least the federal minimum wage and
overtime.
But Violet herself may claim the companionship services
exemption because Brianna mostly provides fellowship and
protection to Violet, and she spends less than 20% of her work
time (only 1 of 10 hours) performing personal care services for
her. Only the agency is responsible for making sure Brianna
receives the minimum wage and, if Brianna works more than 40
hours per week, overtime pay. If Brianna is not paid according
to the FLSA rules and there is a lawsuit for her unpaid wages,
only the agency would be responsible under the FLSA.
Brianna is a home health aide who works for the ABCD agency.
She has been assigned to assist a senior citizen named Violet
who lives on her own. Violet occasionally needs Brianna’s help
with getting dressed and preparing meals. She tells Brianna
when to come to her home, what to do while she’s there, and
when to leave. Brianna spends 10 hours per week with Violet,
but she only spends one hour per week providing personal care
to Violet. During the other nine hours, Brianna keeps Violet
company and participates in some of Violet’s hobbies.
Example: Companionship services
ABCD
Violet
Brianna
Exemption from minimum
wage and overtime rules
+
1 hour per week of
personal care
9 hours per week of
fellowship and
protection
22 23
Martha is a paid provider of home care services for her brother
Charles. Charles’s plan of care authorizes him to receive 40
hours of personal care services per week. After Martha worked
the 40 hours for the week, on a Saturday evening Martha and
Charles decided to go to a restaurant for dinner and then to a
movie. While they were out, Martha helped Charles eat his meal
and take his seat in the movie theater.
In this example, Martha must be paid according to the FLSA
rules for the 40 hours of paid services she provided. But as long
as the plan of care would have provided the same 40 paid hours
regardless of who Charles selected as his paid care provider,
the time Martha spent with Charles at dinner and the movie is
outside the scope of their employment relationship and is not
required to be paid.
Example: Paid family care provider
See Fact Sheet #79F: Paid Family or Household Members
in Certain Medicaid-Funded and Certain Other Publicly
Funded Programs Offering Home Care Services Under
the Fair Labor Standards Act (FLSA).
www.dol.gov/whd/homecare/factsheets.htm
Employment of family members
as home care workers
If a family (or household) member of the consumer is paid
to provide home care services, whoever is managing the
services is the family member’s employer under the FLSA.
For example, the consumer and a home care agency could
jointly employ the consumer’s son or father.
In those circumstances, family members must receive the
minimum wage and overtime pay for all time that is within
the employment relationship. But family care providers
also have a familial relationship with the consumer. Time
within the familial relationship is not subject to the FLSA’s
minimum wage and overtime pay requirements. This can
include time spent providing “natural supports,” or unpaid
assistance provided by the family member. (Note that
these are special circumstances for family or household
members. Any other home care worker must be paid for all
time spent providing services.)
When a family member is a paid care provider, the
Department of Labor looks at the plan of care or other
written agreement describing the paid services, because
that document shows what time falls under the employment
relationship and what time is instead part of the family
relationship. But the employment relationship is limited
to the paid hours in a plan of care only if the family care
provider is treated in the same way any other worker would
have been treated. Most importantly, the number of paid
hours cannot have been reduced because the paid care
provider is a family or household member of the consumer.
See joint
employ-
ment:
page 18
See
minimum
wage and
overtime:
page 30
Keep in mind that the U.S. Department of Labor cannot assess or
inuence determinations about the type or amount of services a plan
of care authorizes.
24 25
Example of
In determining the number of hours for which a live-in home care
worker must be paid, you and your employee can create an agreement
regarding the worker’s schedule. It can exclude from work time:
Sleep time,
Meal breaks, and
Other periods of off-duty time when the worker may
either leave or stay at the home for purely personal pursuits
(provided such a personal break is long enough for the
worker to make effective use of the time).
You and your live-in home care worker can reach any agreement
regarding paid time that is reasonable given the facts of your situation.
However, if any part of the time that is supposed to be for sleeping,
meal breaks, or other periods of free time is interrupted by work, the
worker must be paid for the time spent working. You and your live-in
home care worker should update the agreement whenever there are
signicant differences between the unpaid times in the agreement and
the worker’s actual schedule.
See Wage and Hour Division Fact Sheet 79B, Live-in
Domestic Service Workers Under the FLSA, for more
information about live-in home care workers and how
they must be paid.
www.dol.gov/whd/homecare/factsheets.htm
A special FLSA rule applies to home care workers who
live in the same home as the consumers they work for
(called “live-in” home care workers). They are entitled
to receive at least the federal minimum wage for all their
hours worked, but are not required to receive overtime
pay. This is called the “live-in domestic service employee
exemption.”
Only consumers and their families and households may
claim the live-in domestic service employee exemption.
Agencies or other outside employers of live-in workers
must always pay overtime, even though you are not
required to.
What is a "live-in home care worker?
What is a “live-in” home care worker?
See
minimum
wage and
overtime:
page 30
See
hours
worked:
page 35
Live-in home care workers
To be a “live-in” home care worker, the employee must
either live at the consumer’s home full-time (that is, have no
other home of their own), or spend at least 120 hours or ve
consecutive days or nights in the consumer’s home per week.
A live-in home care worker could be a family member of the
consumer or a provider who moved into a consumer’s home as
part of a shared living arrangement.
Workers who come to a consumer’s home for 24-hour shifts
but are not present for at least 120 hours each week or for ve
consecutive days or nights are not live-in workers.
26 27
See
section
3(m)
credit:
page 30
Stanley needs home care services, so he calls a
registry, which gives him a few names of potential
workers to interview. Stanley meets Mary and hires
her. They agree that Mary will move out of her
apartment and into Stanley’s home, and she will
provide daily personal care services to Stanley there.
Stanley and Mary create a written work schedule for
Mary and agree that Mary’s pay rate will be $10 per
hour.
In this example, because Mary is a live-in home care
worker whose only employer is Stanley, she must
receive at least the minimum wage, but the FLSA
does not require that she receive overtime pay.
Because Mary is a live-in worker, it might be that
Stanley can count the value of the housing she
receives toward the wages he is required to pay.
Example: Live-in hired directly
Stanley needs home care services, so he calls Local
Home Care Agency (Local), which sends Mary to
work for him. Mary moves out of her apartment and
into Stanley’s home, and she provides daily personal
care services to Stanley. Stanley and Mary agree on
her work schedule, and Stanley tells Mary what tasks
he would like her to perform. Local sets Mary’s pay
rate at $10 per hour.
In this situation, Local is Mary’s employer under
the FLSA and Stanley is Mary’s employer under
the FLSA. Both Local and Stanley are responsible
for making sure Mary receives at least the federal
minimum wage. Only Local is responsible for
making sure that Mary receives overtime pay,
because Stanley, and only Stanley, can use the
live-in domestic service employee exemption.
Because Mary is a live-in worker, it might be that
Stanley and Local can count the value of the housing
she receives toward the wages he is required to pay.
Example: Live-in hired through agency
Live-in home care workers
See
Live-in
Direct
Hire
checklist:
page 42
See
Live-in
Direct
Hire &
Agency
checklists:
pages 42-43
See
section
3(m)
credit:
page 30
How to follow the
FLSA rules
30 31
Minimum wage
As of early 2016, the federal minimum wage is $7.25 per
hour. That means any worker who is covered by the FLSA
minimum wage protections must be paid at least $7.25 an
hour for all hours worked.
Example: Hourly rate
Your home care worker comes to your home ve
days each workweek for ve hours each day, for a
total of 25 hours each week. (A workweek is any
set seven-day period. For example, your workweek
could be Monday to Sunday.) You pay your home
care worker $10 per hour, for a total of $250 each
week. You have complied with the FLSA’s minimum
wage requirement.
Under certain circumstances, the FLSA allows you to count
the cost of housing and food you provide to your home care
worker toward the worker’s minimum wage payment. For more
information, visit the Department’s Home Care website and
click on “Credit toward Wages under Section 3(m) of the FLSA
for Lodging Provided to Employees.”
www.dol.gov/whd/homecare/credit_wages.htm
Credit toward wages for housing and
meals provided to employees
You pay your home care worker $50 each day she comes to
your house to provide services. One workweek, she comes
ve days and works a total of 25 hours. In that week, the
worker would have received $250 ($50 per day x 5 days). That
means her hourly rate of pay would be $10 ($250 total pay for
the workweek / 25 hours). Because $10 is more than $7.25,
you would have complied with the FLSA’s minimum wage
requirement.
The next workweek, the home care worker comes to your
house on ve days, but she stays later on a few of those days
and works a total of 40 hours. In that week, the worker would
have received $250 ($50 per day x 5 days). That means she
would have received only $6.25 per hour ($250 total pay for the
workweek / 40 hours). You would owe her an additional $1 per
hour to reach the federal minimum wage of $7.25, or $40 ($1
per hour x 40 hours).
Example: Daily rate
See
hours
worked:
page 35
Week 1
$250
25 hours
=
$10.00
per hour
____
Week 2
$1.00 for each hour
worked to reach
federal minimum wage
$250
40 hours
=
$6.25
per hour
____
Meets federal
minimum wage
requirement
32 33
Overtime pay
Overtime pay means one and a half times a worker’s
regular rate of pay. If overtime pay is due, the worker
must receive it for every hour worked over 40 hours in a
workweek.
Reminder: A workweek is any set seven-day period (for
example, Monday to Sunday).
Example: Overtime calculations
Ellen is a certied nursing assistant employed by a home care
agency and consumers who need assistance with medically
related tasks. Her pay rate is $10 per hour. The agency must
follow the FLSA rules, including paying her overtime, because
agencies cannot claim the companionship services exemption.
The consumers who are her employers must follow the FLSA
rules, including paying her overtime, because she performs
medically related tasks for them and does not live in their
homes.
If this is Ellen’s schedule in a certain workweek:
Ellen is paid as follows:
Ellen must receive at least the federal minimum wage for all
50 hours worked in the workweek and overtime pay for the 10
hours over 40 in the workweek.
She receives $10 per hour for each of the rst 40 hours in the
workweek, which is $400. She receives $15 per hour for each of
the 10 hours over 40 in the workweek, because one and a half
times $10 is $15. That equals another $150. So if Ellen receives
$550 total, she has been paid according to the FLSA overtime
pay requirement.
Reminder: The worker only needs to be paid once. So if an agency
or scal intermediary writes checks to your home care worker that
include all of the wages owed, you don’t have to pay any additional
wages to the employee.
See
hours
worked:
page 35
Workweek
$10 x 40 regular hours = $400
$15 x 10 overtime hours = $150
$400 + $150 =
$550 in this
workweek
Day of
Week
Total
Monday
Tuesday
Wednesday
Thursday
Friday
Hours
Worked
Time
In
Time
Out
10
50
6:00am
11:00am
2:00pm 7:00pm
6:30am
6:00am
6:00am
6:30am
4:30pm
11:00am
11:00am
3:30pm
3:30pm
3:00pm
7:00pm
10:30pm
10
8.5
12.5
9
Time
In
Time
Out
34 35
Some states have established
minimum wage and overtime
requirements that require higher
payments to home care workers
than these federal standards.
Where both laws apply, you must
follow the law that provides the higher wage to the employee.
Check your state laws to learn more. You can nd your state law
at
www.dol.gov/whd/minwage/america.htm
When selecting an agency to nd a home care worker, consider
asking that agency if they’re aware of and follow all federal
labor laws, and pay their workers at least the federal minimum
wage and overtime.
Hours worked means time that an employee works for which an
employer must pay.
The FLSA requires payment for all time when the worker is providing
services or is required to be available to provide services. For example,
if your home care worker is cooking for you or helping you get
dressed, that time must be paid for, and is considered “hours worked.”
Or if you are napping and the worker must be available whenever you
wake up, the worker’s time is hours worked, even if she spends the
time watching TV.
Time does not count as hours worked if an employee has a break long
enough to use the time for his or her own purposes. For example, if
your home care worker is free to go to a movie, run a personal errand,
or attend an event at her child’s school, the worker does not have to be
paid for this time.
For more information on how to determine what time
is “hours worked” that must be paid under the FLSA,
see Wage and Hour Division’s Fact Sheet #79D, Hours
Worked Applicable to Domestic Service Employment
Under the FLSA.
www.dol.gov/whd/homecare/factsheets.htm
Hours worked
Other minimum wage and
overtime laws might apply
What if I use an agency?
36 37
If your home care worker must be paid minimum wage and/
or overtime, then someone must keep basic employment
records. If you have hired a home care worker directly,
you must keep the records. If you use an agency or scal
intermediary, they may keep the records, as long as you can
access the records if you need to.
Basic records employers must keep for each employee
include:
1. Full name;
2. Social security number;
3. Home address;
4. Hours worked each day and total hours worked each
workweek;
5. Total cash wages paid each week to the employee by
employer, including any overtime pay; and
6. Any weekly amounts claimed by the employer as part of
wages for housing or food provided to the employee.
NOTE: Records of wages paid (payroll records) must be
kept by an employer for at least three years. Records used to
calculate how much pay is owed (time cards, work and time
schedules, and records of additions to or deductions from
wages) should be kept for at least two years.
Recordkeeping
Additional recordkeeping requirements
for live-in home care workers
An employer and a live-in domestic service employee may enter into
an agreement regarding the employee’s meal, sleep, and other off-duty
time. If you and your home care worker have one of these agreements,
you must keep a copy of it.
An employer must also keep accurate records of time actually worked
by the live-in home care worker, to conrm that it matches the
agreement or show how it was different from the agreement. As with
other records, a home care agency or other employer of your worker
can create and keep these records, as long as you can access them. If
you are keeping the records yourself, you may assign the employee the
task of creating those records and submitting them to you, but you are
responsible for having them.
You can use any timekeeping method that works for you and
that accurately tracks your home care worker’s work time each
day. Many individuals and families who employ home care
workers nd that it works well to keep a calendar to record start,
stop, and meal times each day. You may also use a timesheet
like the sample pictured, or any other method, as long as it is
accurate.
See
minimum
wage and
overtime:
page 30
See
section
3(m)
credit:
page 30
A tip for capturing work times
See
hours
worked:
page 35
38 39
If you are responsible for paying a home care worker at least the federal
minimum wage and overtime and that worker does not receive all wages
due, you are violating federal law. Your worker can sue you or le a
complaint with the Department of Labor asking the Department to
investigate. If it is found that you haven’t paid the full amount of wages
owed under the FLSA, you will have to pay the missing amount—and
possibly even double that amount—to your worker.
Consequences of not
complying with the FLSA
Day of
Week
Total
Hours
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Employee Information
Full Name:
Social Security Number:
Home Address:
Weekly Time Sheet Sample
Hours
Worked
Time
Out
Date
Time
In
Other resources
42 43
Agency Self-Directed
If YOU hired a home care
worker through an agency or
non-prot organization:
You are probably legally
responsible for making
sure the worker receives at
least the federal minimum
wage and, if the worker
does not live with you,
overtime pay, although
the agency or non-prot
organization can take care
of that obligation for you.
Make sure the agency
you are using is paying
the worker properly
and recording all hours
worked.
Make sure the agency is
keeping basic employment
records, and that you can
access them if you need to.
If YOU hired a home care
worker through a Medicaid-
funded, self-directed program:
You are legally responsible
for making sure the worker
receives at least the federal
minimum wage and, if the
worker does not live with
you, overtime pay.
If you use a scal
intermediary, make sure
the scal intermediary
pays the worker properly
and records all hours
actually worked.
Make sure the scal
intermediary, state agency,
or regional center keeps
basic employment records,
and that you can access
them if you need to.
Live-In Direct HireDirect Hire
If YOU hired a home care
worker directly, and that worker
does not live with you, make
sure YOU:
Pay the worker the federal
minimum wage for all
hours worked up to 40 in a
week.
Pay overtime pay (one and
a half times the employee’s
regular hourly rate) for any
hours over 40 in a week.
Keep basic employment
records.
Count all hours worked.
*In certain cases, you may
be able to use the companionship
services exemption, meaning you
do not have to pay minimum wage
and overtime. Go to page 19 to
learn if your worker qualies.
If YOU hired a home care
worker directly and that worker
lives with you, make sure YOU:
Pay the worker the federal
minimum wage for all
hours worked.
Keep basic employment
records.
Count all hours worked.
Strongly consider having
a written agreement about
schedules, breaks, sleep
time, etc.
Checklists for paying home
care workers properly
*For an explanation of which
home care workers are “live-in”
employees, go to page 24.
44
Please visit our website at www.dol.gov/homecare for more
information about how the FLSA applies to home care, including:
■ fact sheets,
■ frequently asked questions,
■ webinars,
■ and shared living guidance.
Or you can call 1-866-487-9243 to ask questions about the FLSA.
Additional Information
The U.S. Department of Labor provides this information as a
public service, to help individuals comply with the Fair Labor
Standards Act and Department of Labor regulations. Parties
remain independently responsible for determining whether the
wages they pay comply with federal law. Therefore, we make no
express or implied guarantees. The Federal Register and the Code
of Federal Regulations remain the ofcial sources for regulatory
information published by the Department of Labor.
WAGE AND HOUR DIVISION
UNITED STATES DEPARTMENT OF LABOR
WH1516 REV 03/16
www.dol.gov/homecare
1-866-487-9243