Many thanks to Scott Greenberg and Jacky Purje of ComForcare Senior Services in Palm Beach Gardens, Florida, for providing this legal update. Scott and Jacky are always on top of things. Anyone who hires a caregiver needs to know this information!
Effective January 1, 2015, the current overtime exemption for home health aides (HHAs) and certified nurse assistants (CNAs) is repealed. Under the new rule, a caregiver who works more than 40 hours a week must be paid overtime. Also, any live-in caregiver must be paid at least minimum wage, plus overtime for all hours worked over 40 per week.
The new law has enormous practical implications, particularly as it relates to live-in caregiver situations. Issues to be considered now include:
Will the new law apply to you even if you have a private caregiver in place? If you do not pay your caregiver in conformity with the new rule, could you be sued for violation of labor laws and be required to pay overtime and attorney's fees for your caregiver's lawyer?
Do not assume that just because you consider the caregiver an independent contractor and not an employee, that the law will not apply to you. Even if you think you'll never get caught, it's wrong, first and foremost. Secondly, what happens if the person quits or is fired? All bets about your "private agreement" could be off. It doesn't matter even if you have a written contract in which the caregiver and you agree that he/she is an independent contractor. The law will define what the caregiver's role was, notwithstanding your agreement.
Are all health care agencies affected, and what will the new rates be? Many people use nurse registries for their caregiving need rather than home health agencies. Although you may pay a registry directly, most registries take the position that they are acting as a placement service and referral source, and that you are the actual employer. That means you will have to comply with the new rules for minimum wage and overtime pay. Therefore, it may be preferable to use a home health agency in lieu of a registry. At a minimum, speak with a labor lawyer to determine if your private arrangements with the caregiver comply with the new law.
Lastly, it is obvious that this legislation will increase what you pay for caregiver services. If you have avoided applying for long-term care insurance because of the expense, and because you've assumed you can pay an unlicensed caregiver less, you may want to rethink that strategy now.