LIVE-IN HOME CARE WORKERS
The Wage and Hour Division of the U.S. Department of Labor issued Field Assistance Bulletin 2016-1 on April 25, 2016 regarding the “Exclusion of Sleep Time from Hours Worked by Domestic Service Employees”. The Bulletin and accompanying FAQs provide guidance on this matter following the changes to the domestic home care worker exemptions from the Fair Labor Standards Act requirements, including the elimination of the exemption from paying overtime to live-in workers.
Live-In Arrangements. The DOL has set out three categories of live-in employees, as described below. Regulations apply based upon the particular category within which the employee falls.
- Live-In Employees: These employees actually reside at their worksite, including both those who reside for an extended period of time (five days a week (120 hours or more) or five consecutive days or nights (regardless of the total number of hours)), and those who reside permanently (stay there seven (7) days and nights per week, and do not have another home). Up to eight (8) hours per night of sleep may be deducted from hours worked provided that the following requirements are met: 1) the employee and employer must have a reasonable agreement to exclude sleep time; and 2) the employer must provide the employee with “private quarters” in a “homelike environment”.
- Shifts of 24 Hours or More: If employee is required to provide domestic services to employer for shifts of at least twenty four (24) hours, sleep time may be excluded from hours worked if the following requirements are met: 1) the employer provides the employee with “adequate sleeping facilities”; 2) the employee can “usually enjoy an uninterrupted night’s sleep” of at least five (5) consecutive hours; and 3) the employee and employer have an express or implied agreement to exclude sleep time.
- Shifts of Under 24 Hours: The employee must be paid for all sleep time.
These factors are also important in tracking an employee’s time:
If residing permanently, the employee must be paid for some other hours during the workweek; and if residing for an extended period of time, the employee must be paid for at least eight (8) hours during each twenty-four (24) hour period.
Any interruptions in sleep to provide work for or services to employer must be paid.
If employee does not get reasonable periods of uninterrupted sleep totaling at least five (5) hours during any night, all hours of sleep will be paid.
- If employer interruptions to the employee’s five (5) consecutive hours of sleep occur during half or more than half of employee’s shifts, employee must be paid for all hours, with no unpaid sleep time. However, if employee usually gets an uninterrupted night’s sleep, he/she will not be paid for hours of sleep on a specific night if he/she has gotten reasonable periods of uninterrupted sleep totaling at least five (5) hours.
The regulations regarding compensable travel time are also appropriately revisited with respect to live-in caregivers. For more details and specifications of these regulations, contact Scott • Wagner and Associates in West Palm Beach, Florida.