Paying Minimum Wage

and Overtime to
Home Care Workers
A Guide for Consumers and their Families
to the Fair Labor Standards Act

WAGE AND HOUR DIVISION

UNITED STATES DEPARTMENT OF LABOR
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
■■ 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
Introduction
 Who needs this guide?

YOU 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
When we refer to “you” in this guide, we mean a consumer who uses
family or household member who needs services.
the services of a home care worker.
We also mean any family member of a consumer who helps manage If this describes you, see the Live-in Direct Hire
those services. Managing the services could include selecting the Checklist on page 42.
worker, setting the worker’s schedule, determining what tasks the
worker should perform and when, paying for the worker’s services, YOU may be an individual who goes to an agency to find a worker
etc. to provide in-home support for yourself or a member of your family
“You” also means any member of the consumer’s household, such as or household. Perhaps you pay the agency for the worker’s services
a domestic partner or other person who lives with the consumer, who with private funds, or perhaps you receive public assistance, such
helps manage the services. as through Medicaid. Perhaps the agency sends a worker who
moves into your home.
We have created checklists to help you keep track of your obligations,
found at the end of this guide. If this describes you, see the Agency Checklist on
page 43.
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 YOU may be an individual who receives (or helps a member of
provide in-home support. Perhaps you used a registry or a website your family or household arrange) in-home personal care or other
to find your worker, or perhaps you selected someone you already services through a Medicaid-funded self-directed program. Perhaps
knew, such as a family member. the worker you select lives in your home.

If this describes you, see the Direct Hire Checklist on If this describes you, see the Self-Directed Checklist on
page 42. page 43.

4 5
 Who needs this guide?

HOME CARE WORKER

When this guide refers to “home care workers,” we mean workers who
Health-
provide certain types of services in private homes.
related
Home care services are fellowship and protection, personal care, and/ services Tube feeding Injections Other medically
or health-related services, such as assisting a consumer with: related activities

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,
Fellowship nursing home, residential care facility, or hospital are NOT home care
& services.
protection Hobbies Games Keeping Home care workers are called by a number of different job titles,
company such as home health aide, personal care attendant, certified 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.

Dressing Grooming Bathing

Personal
care

Cooking Cleaning Other daily

activities

6 7
 Overview

This guide is about your responsibilities under the Fair Labor

Standards Act (FLSA). The FLSA is the federal law that gives Why did the Department of Labor
most workers in the United States minimum wage and overtime pay publish the Home Care Final Rule?
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 The Home Care Final Rule makes sure that home care workers
at least the federal minimum wage, and overtime pay. We call this have the same basic wage protections as most U.S. workers,
change the “Home Care Final Rule.” including those who perform the same jobs in nursing homes and
group homes. Better wages for home care workers will also help
If you use or help manage the services of a home care worker, you to ensure that consumers have access to high-quality care in their
may be responsible for paying minimum wage and overtime, and for homes from a stable workforce.
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.

8 9
Who needs to follow
the FLSA rules
 When you must pay minimum
wage and overtime

Most home care workers must be paid at least the federal Am I an employer?
minimum wage and overtime. The relevant question is
often who is responsible for making sure these workers If YOU hired the home care worker directly, and no agency
See or other organization is involved, then you are an employer.
are paid according to these FLSA requirements. Whether
minimum
you are responsible for the worker being paid federal YOU must ensure that you are following FLSA rules.
wage and
overtime: minimum wage and overtime depends on whether you are
If you set the worker’s schedule, tell the worker what
page 30 an “employer” as defined by the FLSA.
tasks to do or when to do them, and/or can hire or fire the
worker, you could be an employer under the FLSA. That See
EMPLOYER means YOU must comply with the FLSA even if an agency Direct
provides the worker. Although those facts do not make you Hire
It is necessary to look at many facts about a worker’s job to
an employer for all legal purposes, they do mean you are checklist:
See joint determine who is the worker’s employer under the FLSA.
employ- an employer for purposes of the FLSA. page 42
Although many facts matter, anyone who sets the worker’s
ment: schedule, tells the worker what tasks to do or when to
page 18 do them, and/or can hire or fire the worker could be an
employer of that worker. This is true even if someone else Example: Direct hire
is also an employer (that is, if there’s joint employment).
Knowing whether YOU are an employer is important Diana places an ad on a website offering to work as a personal
because if you are, you are responsible for making sure that care attendant. Olivia, an individual with a disability who needs
your home care worker is paid according to the FLSA rules. personal care services, sees the ad and calls Diana to set up an
interview. Olivia likes Diana, so she hires her. Olivia and Diana
Even if you are not considered an employer for other agree on Diana’s schedule, rate of pay, and job duties.
purposes or under other laws, such as paying taxes or
according to Medicaid, you may still be considered an In this example, Olivia is Diana’s employer. Olivia must follow
employer under the FLSA. This is because courts have the FLSA rules described later in this guide.
defined who is an employer very broadly under this law.

Olivia Diana
12 13
 When you must pay minimum
wage and overtime

If YOU hired the home care worker through an agency,

you are probably an employer of that worker. Under the Example: Joint employment with agency
FLSA, an employee can have more than one employer—
See joint Joe needs assistance with daily activities such as See joint
employ- in this case, both the agency and you. (We call this “joint employ-
dressing and preparing meals so he can live on his
ment: employment.”) ment:
own. Joe calls Home Care Agency, which sends a
page 18 If you and an agency jointly employ a home care worker, personal care attendant named Marcus to Joe’s home. page 18
you may rely on the agency to pay the worker and keep Home Care Agency trained Marcus, sets Marcus’s
required employment records. As an employer under the pay rate at $10 per hour, writes Marcus’s paychecks,
FLSA, the agency is responsible for following the FLSA and could fire Marcus. Joe decides how many hours of
See rules. But remember that if you are also an employer under services Marcus should provide to Joe each day and
record- the FLSA, you are also personally responsible for any tells Marcus what tasks to perform (such as when Joe
keeping: wages that are owed to the worker under the minimum wants to bathe, what he wants to eat, where he wants
page 36 wage and overtime law. This does not mean that the worker to go during the day, etc.).
gets paid twice—it simply means that if either responsible
party does not pay the worker, the other “joint employer” is In this example, Home Care Agency is Marcus’s
responsible for paying them. employer under the FLSA, and Joe is also Marcus’s
employer under the FLSA. That means Home Care
See
Agency and Joe are both responsible for making sure
Agency
that Marcus receives federal minimum wage and
checklist:
overtime pay. Marcus only has to be paid once, but
page 43
both Home Care Agency and Joe must make sure he is
paid according to the FLSA rules.

Agency

Joe

Marcus

14 15
 When you must pay minimum
wage and overtime

If YOU self-direct your services, you are likely the home

care worker’s employer and YOU must comply with the Most home care workers are employees,
FLSA. (There may be another employer as well, such as a NOT independent contractors.
See
state agency or non-profit organization that participates in
Self-
arranging the services. This is another example of “joint
Directed Some employers misclassify home care workers as “independent
employment.”) As an employer under the FLSA, you may
checklist: contractors.” Whether this label is used correctly for purposes
use a fiscal intermediary to help meet your responsibilities,
page 43 of the FLSA depends on whether you are (or someone else is)
such as by taking care of payroll or tracking hours.
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
Example: Self-direction provider”) or their status under other laws. Generally, under
the FLSA, most workers are employees and not independent
Sophie, a senior citizen, needs assistance with daily activities contractors.
(such as dressing and meal preparation) so she can remain in
her home. She enrolls in a self-directed waiver program with For more information on determining if someone is an
full budget authority (cash and counseling) offered by her state. independent contractor, see Fact Sheet #13: Am I an
She selects her neighbor to be her paid care provider. Sophie’s Employee?: Employment Relationship Under the Fair
neighbor records his work hours and submits that information Labor Standards Act (FLSA).
to a fiscal intermediary, which pays him at the wage rate Sophie www.dol.gov/whd/regs/compliance/whdfs13.pdf
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.

16 17
 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
Joint employment 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
Under the FLSA, a home care worker might be employed company, then an exemption from the wage requirements might apply.
both by the person receiving services (or his or her family or We call this the “companionship services exemption.”
household) and an outside employer, such as an agency. This is Any employer other than you (like an agency) must always pay federal
called joint employment. For example, a family and a private minimum wage and overtime. If a home care worker is employed by
home care agency could both employ a personal care assistant. an outside employer, such as a home care agency, then that employer is
Or, in a consumer-directed program run through a state responsible for paying the worker at least the federal minimum wage
Medicaid agency, a person receiving home care services and the and overtime pay even if you are not.
state agency administering the program could both employ a
home health aide. The companionship services exemption is narrow. You may use it
only if:
In these situations, we call the agency the third party employer.
Third party employers always have to pay home care workers the Your home care worker spends no more than 20% of
federal minimum wage and overtime compensation. his or her total working time in a workweek assisting
with personal care, such as bathing, dressing, toileting,
grooming, cooking, cleaning, etc.;
When a worker has more than one employer, each employer is
responsible for making sure the worker is paid according to the The worker does not perform any medically related
FLSA rules, but the worker only has to be paid once. So if an tasks, which are tasks that are usually done by a nurse
agency pays your home care worker properly, your obligations are or certified nursing assistant, such as tube feeding or
met—but if it doesn’t, you could have to pay the wages owed. catheter care; or

Guidance on joint employment situations is available on The worker does not perform any general household
our Home Care website. work that is mostly for members of the household other
than the consumer, such as doing laundry or cooking
www.dol.gov/homecare/joint_employment
meals for the entire household.
18 19
 Exemption from minimum
wage and overtime rules

Example: Companionship services

Under the FLSA, Brianna is employed both by ABCD and by
Violet. Regardless of the duties Brianna performs, the agency
Brianna is a home health aide who works for the ABCD agency. must pay Brianna at least the federal minimum wage and
She has been assigned to assist a senior citizen named Violet overtime.
who lives on her own. Violet occasionally needs Brianna’s help
with getting dressed and preparing meals. She tells Brianna
But Violet herself may claim the companionship services
when to come to her home, what to do while she’s there, and
exemption because Brianna mostly provides fellowship and
when to leave. Brianna spends 10 hours per week with Violet,
protection to Violet, and she spends less than 20% of her work
but she only spends one hour per week providing personal care
time (only 1 of 10 hours) performing personal care services for
to Violet. During the other nine hours, Brianna keeps Violet
her. Only the agency is responsible for making sure Brianna
company and participates in some of Violet’s hobbies.
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,
ABCD
only the agency would be responsible under the FLSA.

Violet

Brianna

10+90
1 hour per week of
personal care
9 hours per week of
fellowship and
protection

20 21
 Employment of family members
as home care workers

If a family (or household) member of the consumer is paid Keep in mind that the U.S. Department of Labor cannot assess or
to provide home care services, whoever is managing the influence determinations about the type or amount of services a plan
services is the family member’s employer under the FLSA. of care authorizes.
See joint
For example, the consumer and a home care agency could
employ-
jointly employ the consumer’s son or father.
ment:
page 18 Example: Paid family care provider
In those circumstances, family members must receive the
minimum wage and overtime pay for all time that is within
Martha is a paid provider of home care services for her brother
the employment relationship. But family care providers
Charles. Charles’s plan of care authorizes him to receive 40
also have a familial relationship with the consumer. Time
hours of personal care services per week. After Martha worked
within the familial relationship is not subject to the FLSA’s
the 40 hours for the week, on a Saturday evening Martha and
See minimum wage and overtime pay requirements. This can
Charles decided to go to a restaurant for dinner and then to a
minimum include time spent providing “natural supports,” or unpaid
movie. While they were out, Martha helped Charles eat his meal
wage and assistance provided by the family member. (Note that
and take his seat in the movie theater.
overtime: these are special circumstances for family or household
page 30 members. Any other home care worker must be paid for all
time spent providing services.) In this example, Martha must be paid according to the FLSA
rules for the 40 hours of paid services she provided. But as long
When a family member is a paid care provider, the as the plan of care would have provided the same 40 paid hours
Department of Labor looks at the plan of care or other regardless of who Charles selected as his paid care provider,
written agreement describing the paid services, because the time Martha spent with Charles at dinner and the movie is
that document shows what time falls under the employment outside the scope of their employment relationship and is not
relationship and what time is instead part of the family required to be paid.
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 See Fact Sheet #79F: Paid Family or Household Members
hours cannot have been reduced because the paid care in Certain Medicaid-Funded and Certain Other Publicly
provider is a family or household member of the consumer. Funded Programs Offering Home Care Services Under
the Fair Labor Standards Act (FLSA).
www.dol.gov/whd/homecare/factsheets.htm
22 23
 Live-in home care workers

A special FLSA rule applies to home care workers who In determining the number of hours for which a live-in home care
live in the same home as the consumers they work for Example
worker ofyou and your employee can create an agreement
must be paid,
(called “live-in” home care workers). They are entitled regarding the worker’s schedule. It can exclude from work time:
See to receive at least the federal minimum wage for all their
minimum hours worked, but are not required to receive overtime
wage and
pay. This is called the “live-in domestic service employee Sleep time,
overtime:
exemption.” See
page 30
Only consumers and their families and households may hours
Meal breaks, and worked:
claim the live-in domestic service employee exemption.
Agencies or other outside employers of live-in workers page 35
must always pay overtime, even though you are not Other periods of off-duty time when the worker may
required to. either leave or stay at the home for purely personal pursuits
(provided such a personal break is long enough for the
What is a “live-in” home care worker? worker to make effective use of the time).
What is a "live-in home care worker?
You and your live-in home care worker can reach any agreement
regarding paid time that is reasonable given the facts of your situation.
To be a “live-in” home care worker, the employee must
However, if any part of the time that is supposed to be for sleeping,
either live at the consumer’s home full-time (that is, have no
meal breaks, or other periods of free time is interrupted by work, the
other home of their own), or spend at least 120 hours or five
worker must be paid for the time spent working. You and your live-in
consecutive days or nights in the consumer’s home per week.
home care worker should update the agreement whenever there are
significant differences between the unpaid times in the agreement and
A live-in home care worker could be a family member of the the worker’s actual schedule.
consumer or a provider who moved into a consumer’s home as
part of a shared living arrangement.
See Wage and Hour Division Fact Sheet 79B, Live-in
Domestic Service Workers Under the FLSA, for more
Workers who come to a consumer’s home for 24-hour shifts information about live-in home care workers and how
but are not present for at least 120 hours each week or for five they must be paid.
consecutive days or nights are not live-in workers.
www.dol.gov/whd/homecare/factsheets.htm
24 25
 Live-in home care workers

Example: Live-in hired through agency Example: Live-in hired directly

See See
Stanley needs home care services, so he calls Local Stanley needs home care services, so he calls a
Live-in Live-in
Home Care Agency (Local), which sends Mary to registry, which gives him a few names of potential
Direct Direct
work for him. Mary moves out of her apartment and workers to interview. Stanley meets Mary and hires
Hire & Hire
into Stanley’s home, and she provides daily personal her. They agree that Mary will move out of her
Agency checklist:
care services to Stanley. Stanley and Mary agree on apartment and into Stanley’s home, and she will
checklists: page 42
her work schedule, and Stanley tells Mary what tasks provide daily personal care services to Stanley there.
pages 42-43
he would like her to perform. Local sets Mary’s pay Stanley and Mary create a written work schedule for
rate at $10 per hour. Mary and agree that Mary’s pay rate will be $10 per
hour.
In this situation, Local is Mary’s employer under
the FLSA and Stanley is Mary’s employer under In this example, because Mary is a live-in home care
the FLSA. Both Local and Stanley are responsible worker whose only employer is Stanley, she must
See See
section for making sure Mary receives at least the federal receive at least the minimum wage, but the FLSA
section
3(m) minimum wage. Only Local is responsible for does not require that she receive overtime pay. 3(m)
credit: making sure that Mary receives overtime pay, credit:
page 30 because Stanley, and only Stanley, can use the Because Mary is a live-in worker, it might be that page 30
live-in domestic service employee exemption. Stanley can count the value of the housing she
receives toward the wages he is required to pay.
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.

26 27
How to follow the
FLSA rules
 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
Example: Daily rate
minimum wage protections must be paid at least $7.25 an
See
hours hour for all hours worked. You pay your home care worker $50 each day she comes to
worked: your house to provide services. One workweek, she comes
page 35 five days and works a total of 25 hours. In that week, the
Example: Hourly rate 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
Your home care worker comes to your home five the workweek / 25 hours). Because $10 is more than $7.25,
days each workweek for five hours each day, for a you would have complied with the FLSA’s minimum wage
total of 25 hours each week. (A workweek is any requirement.
set seven-day period. For example, your workweek
could be Monday to Sunday.) You pay your home
The next workweek, the home care worker comes to your
care worker $10 per hour, for a total of $250 each
house on five days, but she stays later on a few of those days
week. You have complied with the FLSA’s minimum
and works a total of 40 hours. In that week, the worker would
wage requirement.
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
Credit toward wages for housing and
per hour x 40 hours).
meals provided to employees
Week 1 Week 2
Under certain circumstances, the FLSA allows you to count
the cost of housing and food you provide to your home care $250
____ $10.00 $250
____ $6.25
worker toward the worker’s minimum wage payment. For more = per hour = per hour
25 hours 40 hours
information, visit the Department’s Home Care website and
click on “Credit toward Wages under Section 3(m) of the FLSA Meets federal $1.00 for each hour
for Lodging Provided to Employees.” minimum wage worked to reach
requirement federal minimum wage
www.dol.gov/whd/homecare/credit_wages.htm

30 31
 Overtime pay

Overtime pay means one and a half times a worker’s

regular rate of pay. If overtime pay is due, the worker Ellen is paid as follows:
must receive it for every hour worked over 40 hours in a
See
hours workweek. Ellen must receive at least the federal minimum wage for all
worked: 50 hours worked in the workweek and overtime pay for the 10
Reminder: A workweek is any set seven-day period (for
page 35 hours over 40 in the workweek.
example, Monday to Sunday).

She receives $10 per hour for each of the first 40 hours in the
Example: Overtime calculations
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
Ellen is a certified nursing assistant employed by a home care
times $10 is $15. That equals another $150. So if Ellen receives
agency and consumers who need assistance with medically
$550 total, she has been paid according to the FLSA overtime
related tasks. Her pay rate is $10 per hour. The agency must
pay requirement.
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 Workweek
rules, including paying her overtime, because she performs
medically related tasks for them and does not live in their $10 x 40 regular hours = $400
homes. $15 x 10 overtime hours = $150
If this is Ellen’s schedule in a certain workweek:
$550 in this
Day of Time Time Time Time Hours $400 + $150 =
workweek
Week In Out In Out Worked
Monday 6:00am 11:00am 2:00pm 7:00pm 10
Tuesday 6:30am 4:30pm 10
Reminder: The worker only needs to be paid once. So if an agency
Wednesday 6:00am 11:00am 3:30pm 7:00pm 8.5 or fiscal intermediary writes checks to your home care worker that
Thursday 6:00am 11:00am 3:00pm 10:30pm 12.5 include all of the wages owed, you don’t have to pay any additional
Friday 6:30am 3:30pm 9 wages to the employee.
Total 50
32 33
 Hours worked

Hours worked means time that an employee works for which an

Other minimum wage and employer must pay.
overtime laws might apply 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
Some states have established dressed, that time must be paid for, and is considered “hours worked.”
minimum wage and overtime Or if you are napping and the worker must be available whenever you
requirements that require higher wake up, the worker’s time is hours worked, even if she spends the
payments to home care workers time watching TV.
than these federal standards.
Where both laws apply, you must Time does not count as hours worked if an employee has a break long
follow the law that provides the higher wage to the employee. enough to use the time for his or her own purposes. For example, if
Check your state laws to learn more. You can find your state law your home care worker is free to go to a movie, run a personal errand,
at www.dol.gov/whd/minwage/america.htm 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
What if I use an agency? Under the FLSA.
www.dol.gov/whd/homecare/factsheets.htm
When selecting an agency to find 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.

34 35
 Recordkeeping

If your home care worker must be paid minimum wage and/ Additional recordkeeping requirements
or overtime, then someone must keep basic employment for live-in home care workers
records. If you have hired a home care worker directly,
See
you must keep the records. If you use an agency or fiscal An employer and a live-in domestic service employee may enter into
hours
worked: intermediary, they may keep the records, as long as you can an agreement regarding the employee’s meal, sleep, and other off-duty
page 35 access the records if you need to. time. If you and your home care worker have one of these agreements,
you must keep a copy of it.
Basic records employers must keep for each employee
include: An employer must also keep accurate records of time actually worked
by the live-in home care worker, to confirm that it matches the
1. Full name; agreement or show how it was different from the agreement. As with
See other records, a home care agency or other employer of your worker
minimum 2. Social security number;
can create and keep these records, as long as you can access them. If
wage and 3. Home address; you are keeping the records yourself, you may assign the employee the
overtime:
4. Hours worked each day and total hours worked each task of creating those records and submitting them to you, but you are
page 30
workweek; responsible for having them.

5. Total cash wages paid each week to the employee by

employer, including any overtime pay; and
See 6. Any weekly amounts claimed by the employer as part of A tip for capturing work times
section wages for housing or food provided to the employee.
3(m)
credit: NOTE: Records of wages paid (payroll records) must be
page 30 kept by an employer for at least three years. Records used to You can use any timekeeping method that works for you and
calculate how much pay is owed (time cards, work and time that accurately tracks your home care worker’s work time each
schedules, and records of additions to or deductions from day. Many individuals and families who employ home care
wages) should be kept for at least two years. workers find 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.

36 37
 Consequences of not
complying with the FLSA

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
Weekly Time Sheet Sample due, you are violating federal law. Your worker can sue you or file 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
Employee Information owed under the FLSA, you will have to pay the missing amount—and
Full Name: possibly even double that amount—to your worker.

Social Security Number:

Home Address:

Day of Time Time Hours

Date In Out Worked
Week
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Total
Hours

38 39
Other resources
 Checklists for paying home
care workers properly

Direct Hire Live-In Direct Hire Agency Self-Directed

If YOU hired a home care If YOU hired a home care If YOU hired a home care If YOU hired a home care
worker directly, and that worker worker directly and that worker worker through an agency or worker through a Medicaid-
does not live with you, make lives with you, make sure YOU: non-profit organization: funded, self-directed program:
sure YOU:
Pay the worker the federal You are probably legally You are legally responsible
Pay the worker the federal
minimum wage for all responsible for making for making sure the worker
minimum wage for all
hours worked. sure the worker receives at receives at least the federal
hours worked up to 40 in a
least the federal minimum minimum wage and, if the
week.
Keep basic employment wage and, if the worker worker does not live with
records. does not live with you, you, overtime pay.
Pay overtime pay (one and
overtime pay, although
a half times the employee’s
Count all hours worked. the agency or non-profit If you use a fiscal
regular hourly rate) for any
organization can take care intermediary, make sure
hours over 40 in a week.
Strongly consider having of that obligation for you. the fiscal intermediary
a written agreement about pays the worker properly
Keep basic employment
schedules, breaks, sleep Make sure the agency and records all hours
records.
time, etc. you are using is paying actually worked.
the worker properly
Count all hours worked.
and recording all hours Make sure the fiscal
*In certain cases, you may worked. intermediary, state agency,
or regional center keeps
be able to use the companionship Make sure the agency is basic employment records,
services exemption, meaning you keeping basic employment and that you can access
do not have to pay minimum wage records, and that you can them if you need to.
and overtime. Go to page 19 to *For an explanation of which
access them if you need to.
learn if your worker qualifies. home care workers are “live-in”
employees, go to page 24.

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 Additional Information

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.

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 official sources for regulatory
information published by the Department of Labor.
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www.dol.gov/homecare
1-866-487-9243

WAGE AND HOUR DIVISION

UNITED STATES DEPARTMENT OF LABOR

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