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