Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

mschley@schleylaw.com

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(732) 325-0318

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About Mitchell Schley, ESQ

The Rights of Home Health Care Aides to be Paid Minimum Wage and Overtime Pay

The following discussion concerns the rights of home health care aides and other similar workers to be paid minimum wage and overtime pay by an employer.

The Fair Labor Standards Act is a federal law that requires employees be paid minimum wage of at least $7.25 per hour and overtime pay for hours worked in excess of 40 hours per week unless they are exempt. New Jersey law requires employees to be paid minimum wage at the rate of $8.25 per hour, which is higher than what the federal law requires, as well as overtime pay. At first, domestic service workers, such as cooks, maids and housekeepers, were exempt from the law’s requirements, meaning, they were not entitled to minimum wage and overtime pay. In 1974, the law changed and these employees were now able to collect minimum wage and overtime, but there were some exceptions. In this regard, certain types of workers in the industry, such as casual babysitters and workers who provided “companionship services” to elder persons or persons with illnesses or disabilities were not required to be paid minimum wage and overtime for their work.

Because many workers in the domestic service industry work long hours and get paid very little, the United States Department of Labor revised these regulations so that many direct care workers, such as home health aides, certified nursing assistants, personal care aides and other caregivers are protected by the law. The new law, which went in to effect on January 1, 2015, makes it illegal for home care agencies or staffing agencies to refuse to pay minimum wage and overtime to home health aides or similar workers. However, an individual or family that directly employs a live-in worker or a worker who provides “companionship services” to an elderly person or a person with an illness or disability may still lawfully deny those workers minimum wage and overtime, depending on their duties. That is, if an employee spends more than 20 percent of his or her workweek assisting with daily living activities, like, dressing, grooming or bathing and other instrumental activities, such as meal preparation, driving, light housework and the like, then that employee is entitled to minimum wage and overtime pay. Further, a live-in worker is not entitled to minimum wage and overtime pay if they permanently live in the home of the person they are caring for, that is, seven days per week, or live there for extended periods of time, which is considered to be either five days a week for 120 hours or more, or five consecutive nights for less than 120 hours per week. A live-in worker does not have to be paid for time he or she spends eating or sleeping or other periods where she has no duties to perform.

The major effect of this new law is that more domestic service workers will be protected by the minimum wage and overtime provisions. Although some groups in the home healthcare industry challenged this rule and argued that that it raises the cost of care for patients and therefore will make care less attainable, the United States Supreme Court rejected their argument and the new law protecting more domestic service workers will stay in place.

If you are a home health aide or similar type of worker and you are not sure if you are being paid correctly, it is important for you to contact a labor lawyer to discuss your situation.

Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. He can be reached at (732) 325-0318 or at www.schleylaw.com.

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
mschley@schleylaw.com
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