In smaller and sometimes larger assisted living homes, including adult foster care, personal care homes, adult family care homes, etc. live-in staff can reduce overall wage obligations. At least they should.
At the same time it is urgent that providers know the applicable laws, both federally and state based that affect what you need to pay staff, live-in or not. You also need to know overtime requirements. Not knowing these things could lead to breaking labor law and leave you with a bill that none of us wants.
For example the federal standard dictates that you can exclude eight, (8) hours per day of compensation as long as the person has a private place to sleep, and they consider the home to be their primary residence. In states, such as Michigan the rule says the live-in employee can be exempt from five, (5) hours of pay as part of a general routine, however, if they are excused from work for ten, (10) hours per day then that would be ten, (10) hours you do not have to pay this person. Often the more stringent law/standard would apply when state and federal statutes differ.
Many states also require overtime pay if more than forty, (40) hours of work is documented in a seven, (7) day work period. That would be $8.90 x 1.5 in a state like Michigan for every hour over forty, (40) in a seven, (7) day week.
Note the following language from the applicable federal rules:
Updated! – 30- Q. During an overnight shift, does an employee have to be paid when he or she is asleep?
A. It depends on the employee’s schedule and whether certain requirements are met.
Shifts of Less than 24 hours
Under the FLSA, an employee who works a shift less than 24 hours must be paid for the entire time he/she is required to be at the worksite even if he/she is permitted to sleep or engage in other personal activities when not busy. All the time is counted as work time that must be paid.
Shifts of 24-hours or more
If an employee is required to be at the worksite for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, (2) the employee’s time spent sleeping is usually uninterrupted, and (3) there is an expressed or implied agreement to exclude sleep time.
Live-in employee who resides at the worksite on a permanent basis
If an employee resides at his/her worksite on a “permanent basis,” meaning the employee has no other home, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for some other hours during the workweek, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.
Live-in employee who resides at the worksite for extended periods of time
If an employee resides at his/her worksite for “extended periods of time”, meaning the employee does not live there exclusively but meets the live-in residency requirements, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for at least eight hours per 24-hour period, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.
Note: See questions and answers for Live-in Domestic Service Employees for additional information regarding the definitions of “permanent basis” and “extended periods of time”.
Updated! – 31- Q. What are the requirements for the exclusion of sleep time from hours worked during shifts of 24 hours or more?
A. Sleep time may be properly excluded from compensable hours worked for an employee on duty for 24 hours or more if (1) adequate sleeping facilities are furnished by the employer, (2) the employee’s time spent sleeping is usually uninterrupted, and (3) there is an expressed or implied agreement to exclude sleep time.
Whether an employer has provided “adequate sleeping facilities” to a domestic service employee depends on the facts and circumstances of a particular living arrangement. In general, an employer must ensure that the employee has access to basic sleeping amenities; reasonable standards of comfort; and basic bathroom and kitchen facilities. The sleeping area and other facilities can be shared or private.
An employee can “usually get an uninterrupted night’s sleep” if an employer’s interruptions that prevent him/her from getting five consecutive uninterrupted hours of sleep occur less than half the time. However, interruptions to an employee’s five consecutive hours of sleep that occur during half or more than half of an employee’s shift are too frequent to meet this requirement.
An “expressed or implied agreement” regarding the exclusion of sleep time means either a written or verbal agreement that an employee will not be paid for sleep time or an agreement to exclude sleep time that is implied by the employer and employee’s conduct. If an employee objects to the exclusion of sleep time from her hours worked, no such agreement exists and all hours spent on duty, including time spent sleeping, must counted as work time.
Updated! – 32- Q. What are the requirements for the exclusion of sleep time from hours worked for live-in employees?
A. To exclude sleep time from the hours worked of an employee who lives at the worksite, (1) the employer and employee must have a reasonable agreement to exclude sleep time, and (2) the employer must provide the employee “private quarters in a homelike environment”
The reasonable agreement should be in writing in order preclude any misunderstanding of terms and conditions of an individual’s employment.
Private quarters means living and sleeping space that is separate from the person receiving services. A homelike environment means space that includes facilities for cooking and eating, a bathroom, and a space for recreation.
For example, a home health aide and a consumer could live together in a two-bedroom apartment with a living room, kitchen with dining space, and bathroom. The consumer uses one of the bedrooms, and the provider uses the other. The provider’s bedroom contains a bed, night table, dresser, two lamps, and a desk and chair; the provider stores personal possessions in the room. Both the consumer and provider use the living room, kitchen, and bathroom. The provider, consumer, and a third party home care agency all signed a written agreement that the employee’s hours will not include the hours between 11:00pm and 7:00am, when she sleeps. In these circumstances, because the employee has private quarters in a homelike environment and a reasonable agreement with her employers regarding the exclusion of sleep time, the consumer and the agency may exclude from the home care worker’s hours worked the eight hours per night between 11:00pm and 7:00am.
Updated! – 33- Q. If the employee has already been providing domestic service to an individual, family, or household and does not have an agreement about sleep time, must the employer now pay for all sleep time?
A. An employer and employee may enter into an agreement to exclude a scheduled sleeping period of not more than 8 hours from the employee’s hours worked at any time. For live-in employees, the agreement should be in writing. To exclude such time, the employer must meet the additional requirements.
Updated! – 36- Q. What if an employee is up multiple times throughout the night or all night providing services?
A. Interruptions during which the worker performs tasks on behalf an employer must always be paid as work time. If the interruptions are so frequent that the employee cannot get reasonable periods of sleep totaling at least five hours during the scheduled sleeping period, the entire period must be counted as time spent working and paid accordingly.
For those of you in home care you also need to pay attention to pay requirements affecting travel time. So print what you must, get that highlighter out to draw attention to what is applicable and stay within the law. You save yourself tons of grief in the process.
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A Blog Post presented by Direct Care Training & Resource Center, Inc. a Project Management firm focused on the business of care. Photos are used to draw attention to the written material but do not represent an affiliation with or an endorsement by any individual or organization. Laws and statutes related are accurate at the time of publication to the best of our knowledge and belief. This Blog is not managed by attorneys and does not purport to offer legal advice.
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