Should Non-medical In-home Caregivers Be Paid Overtime?

This is a guest post written by Craig Falk, who is the President of Craig Cares, a premier provider of In-Home Caregivers In Sacramento that serves the area in and around Sacramento, California.   

Introduction

There are proposed new regulations and laws which, if they take effect, will significantly impact the private-sector non-medical in-home caregiver industry in California  and hurt the workers who perform this very important and valuable work.  The proposed new burdens for the industry include a Federal Department of Labor regulation change that has been ordered by President Obama (currently in a public comment period) and a California Assembly Bill (AB 889) authored by California Assembly Member Tom Amiano (D-San Francisco), currently being considered by the state legislature.

Both of these propose to require that in-home care workers that work as employees of in-home care companies (1) be paid at least minimum wage, and (2) be paid overtime.  They only apply to caregivers who work as employees of home care companies but not to workers hired privately by clients and their families.

There’s No Question That In-Home Caregivers Should Be Paid At Least Minimum Wage

Caregivers should be paid at least minimum wage, and they are.  The federal minimum wage is $7.25 an hour and the California minimum wage is $8.00 an hour.  In my agency,  and most agencies, the beginning caregiver wage is $10.00 an hour.  That’s 38% above the federal minimum wage and 25% above the California minimum wage.

So the more significant issue is overtime, not the minimum wage.

Should Non-Medical In-Home Caregivers Be Paid Overtime?

The Federal proposed change would require that non-medical in-home caregivers who work for home care companies be paid overtime if they work more than 40 hours per week.  The proposed state change (AB 889) would require that non-medical in-home caregivers who work for home care companies be paid overtime if they work more than eight hours per day or more than 40 hours per week.

In much of the debate I’ve heard, proponents of eliminating the Companion Exemption refer to caregivers as “home health care” workers.  By the labor code’s own definition, caregivers provide only “non-medial” care giving services.  I believe it is only fair to be clear there is a distinction between “non-medical” caregivers and “home health care” workers who are RN’s, LVN’s, Physical Therapists, and Social Workers.  These positions require a much higher level of education and are governed my entirely different labor codes.

Should non-medical in-home caregivers be paid OT?  This is a more complicated question.  At first glance it seems obvious they should be paid OT.  I certainly thought so when I first heard about the issue over ten years ago.  However, the premise of the OT exemption is that there is routinely a significant amount of downtime for shifts that are greater than four hours.

For example, during a 12 hour shift the caregiver may be actively working less than 50% of the time.  Remember, nearly all in-home caregivers work for only one client at a time.  They have vastly different working conditions than employees in retail environments or caregivers working in nursing homes who care for at least 8 residents at a time.

After ten years in this business, I now believe the OT exemption is fair.  I do know that 12 hour shifts, without OT, are far more popular with caregivers than 4, or even 8 hour shifts.  I also know that if the OT exemption is removed we will rarely schedule caregivers for more than 8 hours a day or 40 hours a week as is the case in any industry where OT is required.

Should Non-Medical In-Home Caregivers Be Paid For Sleeping?

Is it reasonable to deduct sleep time for a caregiver?  Live in caregivers stay at the home of their client for three to four days straight.  They have their own room, bed, and their food is supplied.

It is true the caregiver is required to stay in the house, including at night, in case the client needs their help.  Currently sleep time can be deducted for caregivers in the same way as ambulance drivers or apartment complex managers.  The federal government has provided clear guidelines as to when sleep time can be deducted from paid time.  The caregiver must get 8 hours of sleep, of which five hours must be continuous, and not be awakened to assist the client more than one to two times a night on a regular basis.

Live In shifts are not for everyone.  For some in-home caregivers, family responsibilities prevent them from working Live In shifts.  For many in-home caregivers,  Live In shifts are preferred as they can make $30,000 a year working four days a week.

The proposed changes in AB 889 would eliminate Live In shifts.  The only option would be to staff round the clock care with three 8 hour shifts daily.  A client would have three different caregivers every day and at least six over the course of a week.  Maximum yearly pay for one of these caregivers would be less than $17,000.

Why Should Overtime Be Required For Caregivers Working For In-Home Care Companies, But Not For Caregivers Working Privately?

While the current proposal to remove the Companion Exemption applies to caregivers working for agencies, caregivers working privately for individual families remain exempt from OT.  That is not fair.  The working conditions are the same.  The caregiver already has more protection when working for an agency.  It makes no sense to create even greater protections for caregivers working for agencies, but none for those working privately.

Agencies like mine exist to keep seniors safe and comfortable in their own homes.  The proposed federal and state changes would increase the costs to some clients, including those requiring 24 hour care, by 100%.  A Live In caregiver’s potential wages drop by 43%.  Neither clients nor caregivers can afford this.  They would have little choice but to make private employment arrangements.  Not only would both parties lose the protections they enjoy using an agency, but federal and state governments would lose payroll and income taxes.  How can that be fair for anyone?

 

For professional non-medical in-home caregiver service in the Sacramento area, call Craig Cares at (916) 782-7121!