Adult children with an aging parent often try to keep mom in her home setting for as long as possible. Enter the home care worker. Everything is fine until the relationship ends, for whatever reason. The worker finds an attorney and make legitimate unpaid wage claims, carrying lots of penalties, that easily exceed $100,000 for even a minimum wage caregiver. Here are tips for the well-meaning but often clueless family member who hires a home care worker for their elderly parent, usually as a live-in.
These workers are not independent contractors. They must be treated as employees even if they want to be independent and waive their right to employment. If the worker is illegal, that will not be a defense to the wages owed.
Do not pay a salary and do take out taxes. Do not pay cash. If you pay a salary, the law provides that you will have paid only for eight hours a day, even if they are working 10, 12 or even 24 hours in a day. Pay an hourly rate of at least state or local minimum wage applicable to your area. Overtime and double time apply after 8 hours in a day and 40 hours in a week, but there is an exception noted below.
Pay all caregivers with the parent’s checkbook and assets. Children do not want the caregiver claiming that they were the employer, as that will likely afford them access to other family member assets if there is a claim.
If the worker is a live-in or otherwise is required to stay on the premises at night, they must be paid for all hours if they can’t leave. Families cannot carve out sleep time as unpaid in a home setting, even if the worker agrees or never has to get up at night.
Most in-home family care workers qualify as “personal attendants” -- someone who spends less than 20% of their time doing ancillary activities beyond personal “supervision.” These other activities include cooking for other family members, housekeeping and shopping. It is useful to reference this 20% cap in a written agreement and advise the employee to let the family know if they are going over that threshold. By law, personal attendants don’t receive overtime until after 9 hours of work and double time does not apply.
A personal attendant may not perform any medical procedures beyond helping mom take her oral medicine, or reminding her.
If the worker qualifies as a personal attendant, then the legally mandated meal and rest break rules don’t apply. Otherwise, there are penalties for forcing non-personal attendant home care workers to take on-duty meals and rest breaks.
Families must pay for mileage if the worker drives his or her vehicle on behalf of mom.
Although it is much safer to go through a home care agency to employ these workers, it is more expensive. Also, families should research the agency‘s history. Small agencies often don’t know the law and sometimes disappear when there is a claim. Or they have legally set themselves up as only a registry, and cannot be deemed a joint employer on the hook for advising improperly about the payment structure.
If the worker is a live-in, the family is entitled to offset minimum wages with rent credits for occupying a room. That agreement must be in writing or it is void. The law regulates the credit value. There is also a minimum wage credit available for the value of daily meals, assuming the employee eats the food provided by the employer.
All home care workers are entitled to receive sick leave based on applicable state or local law.
Employees are required to receive one day off in a workweek unless they agree to work all seven days (which should be in writing). Although employees can agree to work all seven days, if they habitually work all seven, which is common in household situations, it would not be hard for the employee to claim later that they were forced to work every day because of the nature of the employment. Families should attempt to find a relief worker for at least one day each week.
By observing these rules families can help elderly family members without unnecessarily exposing their assets to claims by home care workers – an all-too-common occurrence in the past few years.
About the Author: Jonathan Fraser Light presented our February 2023 webinar entitled "February Double Feature! Conducting Workplace Investigations & You're Not the Boss of Me!" which members can view in our webinar archive. He is the managing attorney and co-founder of LightGabler, an employment law boutique representing employers of all sizes. For questions or comments e-mail Jon at email@example.com.