New law says home care workers must be paid OT, at least minimum wage, and travel time

By on October 24, 2015

Cost of assisted livingThe people who make it possible for the elderly and others who need help with daily living to stay in their homes just got some affirmation.

Effective immediately, agencies and individuals who hire home care workers will need to pay them at least the federal minimum wage. They also will need to start paying overtime at a rate of time and a half. Agencies will need to pay these workers for the time they spend traveling from house to house, too.

The law, which was supposed to take effect Jan. 1, 2015, was delayed because lobbyists representing the home care agencies cried foul. They said the requirement will be too costly, leaving millions of elderly and disabled people without the help they need.

But to a home care worker who has to work overtime or have more than one job, or even two, just to survive, being treated the same as most of the rest of working America is long overdue.

I wrote about this issue in March for Healthline News in a piece headlined, “The People Caring for Your Parents Live in Poverty.” While I won’t deny my reputation as someone who expected the very best from the people my dad paid to care for him, especially when he was no longer able to articulate his needs himself, I also think the people who care of our frail parents and disabled loved ones ought to be able to make a living and support their own families.

Currently, the way we care for people in their homes in our country is really a bit of a mess. In about half the states, you don’t even need a license to operate a home care agency. Such a loose way of doing business when it comes to the care of our most vulnerable citizenry is, in my opinion, unconscionable.

I’m not sure what anyone really should expect from workers who aren’t at least paid minimum wage and given overtime. The fact that our country is in the midst of an elder care crisis, with 1,000 Baby Boomers per day turning 65, doesn’t give us an excuse not to recruit, train and properly compensate the people who care for them.

What about live-in, 24/7 home care workers?

For families who hire live-in, round-the-clock help, it is true that this new law may hit them hard in the pocketbook.

“That issue has come up a lot,” said Abby Marquand, director of policy research for Paraprofessional Institute, or PHI. “In the past, agencies were negotiating a flat rate for a worker if somebody were to go into a person’s home and essentially sleep there but be on call through the night. Under the revised exemption, they must be paid for every hour they work, and at least be paid minimum wage.”

Employers will be able to exempt up to eight hours of sleep time and also meals times, but, “You really do have to be off duty,” Marquand said.

Even if you don’t go through an agency and instead hire someone privately, you still need to make sure you keep 1099 tax records for them and abide by the new labor law.

I think those of us who have cared for our loved ones, particularly those with dementia, directly in their homes and without help, know that the idea of eight hours of sleep is incredibly far-fetched.

“If they are up with the client half the night, they must be paid for that time,” Marquand said. “And I completely appreciate the fact that this is a big change for people who may have been paying out of pocket for around the clock care. But when you think about it, in terms of what you were asking people to do and how we were paying them, it’s pretty unsustainable.”

It’s called caregiver burnout. If it happens to those of us caring for our own flesh and blood, it happens to the people who actually do it for a living too.

What if I need my caregiver 12 hours a day?

Another concern among caregivers are those who hire help for 12 hours of the day. That means they are going to need two caregivers or pay just the one caregiver four hours of overtime.

But Marquand believes that having two caregivers trained and familiar in helping your loved one makes better sense anyway. “When you need a backup person, it’s a good thing to have more than one person equipped to handle your situation, and to have two or even three people.”

The truth is that demand for home care workers is so high, and the pay so low, landing one of these jobs is not very difficult. While many home care workers are dedicated to their profession and the emotional rewards they reap for helping others, to others it’s just a job. And you’re going to attract that kind of worker when demand is high and pay is low or you won’t be able to meet demand.

This is America, after all. Capitalism is our model. And that said, as caregivers demand quality care for their loved ones, the system of capitalism is going to have to adapt.

Along those lines, Marquand points out that these new regulations hopefully will force agencies to work more efficiently in an effort to keep a lid on costs. “The good thing about this new rule is that it will create new incentives to agencies to optimize time for their workforce,” Marquand said. “Overtime is expensive, so for example they may work to minimize travel time and improve the quality of the job.”

While some of the “high-road” agencies provide mileage reimbursement for their workers, others do not, Marquand said.

Some advice for state-funded programs

As for the states who contract with these agencies, PHI suggests they:

  • Commission a labor market analysis to examine the interplay of workforce policies in different low-wage sectors and their impact on the supply of home care aides in different regions of the state.
  • Collect current workforce data in order to accurately budget for new costs.
  • Protect elders and people living with disabilities by ensuring flexibility in meeting high-hour needs.
  • Create a home care worker ombudsman position to inform workers of their new rights and to ensure appropriate compliance.

Home care workers have every right to go to their state’s Department of Labor and request an investigation of their employer if they feel they are not abiding by this new law.

A couple of home care workers I know told me their agencies already have eliminated overtime, so now they are having even more trouble making ends meet because they are getting fewer hours. Says Marquand, “The reason they need to work overtime is the hourly wage is not enough. In terms of care quality, it is not ideal for people to be putting in 60 or 70 hours a week. We don’t recommend that if the quality of care a person receives is going to suffer. The job can be physically and emotionally taxing.”

I don’t think many caregivers would argue with that.

“What we really need to do is just make these better jobs, so they can work full-time, earn a reasonable income, and not have to burn out to make ends meet,” Marquand said. “That’s not good for anybody.”

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