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Exemption to Overtime Regulations of Caregivers Proposed

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Exemption to Overtime Regulations of Caregivers Proposed

Molly Schlanker


Senior caregivers provide hourly and daily care for seniors in their homes and in senior living communities.  The daily "live-in" senior care has been exempt from over-time pay under the companionship exemption within the federal Fair Labor Standards Act (FLSA).  A new proposal by the Obama administration would change this.  The live-in caregivers who care for the senior during the day and sleep at night would qualify for over-time pay.  These caregivers have been classified as companion caregivers for the elderly, but the 18th initiative in Obama's "We Can't Wait" campaign would over-ride a 2007 Supreme Court ruling that upheld home care workers' exclusion from wage-and-hour standards.

The senior home care industry has doubled in size in the past decade.  The baby boomer generation just began turning 65 and it is projected that 27 million Americans will need home care by year 2050.  

The International Franchise Association issued a news release opposing the new regulations to eliminate the over-time exemption, saying the new rule could potentially triple the cost of senior home care.

"These proposals, while seemingly well-intended, will likely cause seniors and their family members to pay more for care, possibly making these services economically unviable, given this type of care is paid for not by insurance, but by families themselves. This will result in driving seniors away from home care and into facility care which requires more government resources through Medicare and Medicaid expenditures," said IFA President and CEO Steve Caldeira.

Medicare only pays for up to 100 days in a nursing home and for seniors who are very low-income (usually must have less than $2,000 in assets), will qualify for Medicaid which does pay for a nursing home ongoing.  The higher cost of senior care with the overtime fees added would cause more seniors to spend down their assets and qualify for the low-income Medicaid care in a nursing home.  Medicaid is a joint program with the federal government and each state and the income requirements and services vary slightly in each state because of this.  Caregiverlist provides the Medicaid qualifications in each state (these qualifications do change as states seek to keep up with an increase in costs and the decrease in tax revenue, with this causing Illinois to recently change Medicaid financial qualifications).

Senior caregivers assist seniors with activities of daily living (called ADL's) and work as hourly and daily "live-in" caregivers for professional senior care companies.  In order to meet federal labor laws, the senior home care agencies and home health agencies employing senior caregivers must provide for all payroll taxes, worker's compensation insurance and professional liability insurance.  Caregivers also receive professional care plans with daily duties and tracking and have a management team to report changes in the senior's condition and behaviors.

Hourly senior caregiving jobs mean the caregiver is working on hourly shifts, following the labor laws of a 40-hour work week and overtime is paid when 40-hours are exceeded.   Live-in caregivers do not actually "live with" the senior.  The term is used for caregivers who go to the seniors house and spend the night, while being able to sleep at least 8 hours each night and able to have a couple hours of down-time to themselvs in the evening. These seniors need someone to be with them at night, just in case they might need extra assistance on occasion. Seniors with memory loss, for instance, often will have a live-in caregiver to be there at night just for security so that they do not wake up and become confused.  Other seniors may need someone to assist them in the night in case they need to get up for a bathroom visit.  Or they may be prone to falling and want a caregiver with them at night because of this.

Right now these live-in caregivers are paid a daily stipend and usually receive food and a few other benefits along with the stipend.  They do not receive over-time pay.  This means that if they stay with the senior for 2 days and are on the job for 48 hours, they are still not paid overtime pay.  But keep in mind this is because they are a le to sleep at night and have time to themselves in the evenings.  These caregivers must be able to obtain a good night's sleep.  If a senior is up often during the night and the caregiver cannot sleep, then the senior's caregivers must move to hourly care.  Usually multiple caregivers are rotated to maintain the 40-hour work week without overtime pay.

This is because overtime pay becomes expensive as it is time-and-a-half.  A senior who is paying $18 per hour for care would need to pay $27 per hour.  This adds up quickly and unless someone is very well off financially, it would be tough to afford more than $100,000 a year for a senior caregiver, in addition to paying for living expenses.

There are thousands of senior home care agencies providing professional senior care and many of these agencies are franchises.  The International Franchise Association has issued a statement about the negative impact of this proposed legislation for ovetime for companion caregivers.

From the International Franchise Association (IFA) news release:

The companionship exemption is the provision within the federal Fair Labor Standards Act (FLSA) which exempts caregivers from the requirement of being paid overtime. The companionship exemption is a significant factor in helping to keep paid, senior home care affordable. The proposed rulemaking by the U.S. Department of Labor will narrow the scope of those caregivers covered by the companionship exemption, to include employees of many IFA member companies.

IFA supports legislation, The Companionship Exemption Protection Act (H.R. 3066) sponsored by Rep. Lee Terry (R-Neb.), that would supersede this proposed regulation by the Department of Labor. This bill would define third party non-medical in-home care to include, but not be limited to the following services: companionship, light housekeeping, meal preparation, errands, assistance to appointments, laundry, medication reminders, bathing and assistance with incontinence and grooming. This bill importantly would ensure that third party providers are included in the companionship exemption in federal law. Furthermore, for the first time, this legislation would include a definition of companionship services in federal law.

"The companionship exemption also helps protect the continuity of care many franchise businesses provide to seniors who typically like to have the same caregiver," said Caldeira. "If overtime payment is mandated, some home care companies will be required to restrict the hours that their caregivers can work, thereby requiring multiple caregivers to care for the same senior, creating confusion for the seniors which adversely affects the quality of care in addition to the cost of care."

Government research also shows the companionship exemption helps preserve and create jobs. According to the U.S. Bureau of Labor Statistics/Office of Occupational Statistics and Employment Projections to 2018, published in the November 2009 Monthly Labor Review, home health aid is the second fastest growing job category in the country. Changes to the companionship exemption would disrupt this employment growth.




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anonymous wrote: 575 days 7 hours ago

We were sent this information from Deborah Greenspan a wdorenful parent advocate for the special needs community and would like to ensure that some of our Title I parents attend please email me when the next course begins.Thank You

anonymous wrote: 606 days 20 hours ago

Pay fair wages instead of 24 hour shifts with the workers not able to pay their own bills and get by. Even if they work 4 shifts a week (More than half your life} for less than $500. AGENCIES HIRE ANYBODY THAT CAN PASS A BACKGROUND CHECK. 8 HOURS OF SLEEP HAHAHAHAHAHA Serious pipe dream. 4 or 5 at best. ELDERS PAY PRIVATELY SO CAREGIVERS CAN MAKE AN HONEST WAGE AND YOU CAN SAVE MONEY.

anonymous wrote: 606 days 21 hours ago

Caregivers get taken advantage of due to this law. It enables employers to keep caregivers working for 22 of 24 hours and not even making minimum wage. Another way for corporate greed to screw us over a little more.

anonymous wrote: 817 days 1 hours ago

Im a live in caregiver for the weekend i make 110 a day i work 24 hour shift i have to provide my own personal things and food how should i be paid

anonymous wrote: 882 days 16 hours ago

I've been doing live in care for 2yrs now and yes I agree the agencies get way to much of "our" money with us doing all the work.

anonymous wrote: 1010 days 11 hours ago

I have been caregiving for over twenty years now it's enjoyable and it makes you feel good at heart that your helping a senior that cannot help themselves they learn to love you as a person that cares about them they really do get close and trust your decisions if your with them long enough though they don't all realize all though some do that it is a very hard job it consists of manual labor there is at times a lot of lifting changing positions every two hours cleaning up after accidents meal preps dr appt laundry bed changing shopping feeding so on so forth it's extra tuff when you live in and it's double the work load but the pay is even less because of live in the patient might have sun downers then your up doing what needs to be done during the day and up down all night no going to sleep from this time to that as in sleep at 8 up at 8 so it is a very hard job that consists of a good heart good health lots of energy strength time and on and on and let me say that I wish the health caregivers had something at the end of their rainbow for their love and affection and hard work they have given over the years of their lives we as in hard working back breaking meal making dr taking etc etc etc really deserve a way to tend to ourselves at our last work days well thanks for reading and I know there's two many that agrees

anonymous wrote: 1013 days 4 hours ago

Think your all wrong a caregiver does more then you think in a day. To not get overtime. I love my work and got a a lady I take great care of at 36 hours a week. Do to caregivers not getting overtime a refuse to work more hours because what is the uses of working more if you don't get the overtime. It really takes a very loving, ang caring person to take care of the elderly, the government don't think of everything like when a caregiver starts at 8am and don't 5:30 pm no lunch just cooking them breakfast, lunch, dinner, cleaning their house top to bottom,changing their bedding, bathing them, getting them dressed, taking them shopping and driving to appointments and after meds. There are some elderly people we got to even change a daiper on them and catch them if go to fall. But we don't get overtime pay for are hard and caring work. But I worked at mcdonalds and did less I would get overtime and it just doesn't seem right. To get hours some times we drive to many different areas any many different homes to care for people with gas prices and beaten on are own cars to care for people there homes and yet we still don't get the overtime. I just feel if it's a law then every field of work should get it if work hard enough for it. It's not like I make 18 dollars a hour to cover gas and up keep of the car being used for work only making 9.25 and hourly.

anonymous wrote: 1071 days 12 hours ago

For the last year I have been taking care of a couple both in wheelchairs. He has MD and only use of a few fingers. So I spend about 15 hours taking care of him. This also includes helping her with meals driving twice a week to the doctor for chemo therapy. Many times when she is having her treatments I'm sent to different stores. Of curse. 3othere is the usual laundry and housework. It takes me 8anywherefrom one to one and half hours just to feed him. That

anonymous wrote: 1168 days 5 hours ago

Of course we have to take care of the elderly. But we also need to make a living wage. I'm self employed and take care of a couple both in wheelchairs. I'm available from 8 a.m. until 11 p.m. when I get the last one in bed. No I don't work all of these hours but most days I only have two to three hours not consecutive off a day. I also get up every night and turn one of them because they cannot move. With these hours I feel I'm only making $8.00 an hour because I work 13-14 hours a day.

Yes some of us would get overtime but very few because so many only work part time or for more than one agency. Also many of the people I worked for only needed me for 4-6 hours a day.

anonymous wrote: 1255 days 9 hours ago

I agree with the idea that these franchises should only make an administrative fee. They should not be allowed to pocket way over half of what we make especially on 24 hour shifts. By the way, the one I work for only pays me 15 dollars extra even if I get less the 6 hours sleep. They charge the client 30 and pocket 15, even though they lost no sleep.

anonymous wrote: 1392 days 1 hours ago

Caregivers in Florida may make $10.00 an hour. Not only are seniors in crisis, the pool of quality individuals who care for them are in an economic meltdown reality. If we were to earn time and a half for care beyond 40 hours, we still fall below the magic $18.00 to $27.00 charged by agencies. And when we are injured? Who is there? No One. Intervention is needed - now! I have a Blog to share, but it is not allowed on this site ... suprised?

anonymous wrote: 1507 days 19 hours ago

As a caregiver who is been working on the field for the last 12 years, I think that the only way that many seniors can afford our care is because of this law. It will be very sad that many seniors who will not be able to afford the hourly rate will have to go to a senior care facility and the potential clients for private care will no longer be there for us caregivers who like to work in private homes. I like Obama but he should not do this to seniors.

anonymous wrote: 1610 days 13 hours ago

Sorry but as a caregiver, I can't wait for change. The agencies are ripping everyone off. The agencies want you to think that caregivers can't work without them, but the exemptions will still exist for customer to caregiver direct employement. Currently Agencies pocket all that money.

Most caretakers need to work 100 hours a week to make 30k a year. Nobody should have to work overtime, and with the economy as bad as it we need to create more 8 hour shifts.

Caretaker agencies do not treat employees well at all. Having a workforce exempt from wage protection attracts opportunistic and shady employers.

I say down with the agencies. Sorry if it means you can't afford a personal caregiver, but having someone at your side 24 hours a day is expensive, why would you double that fee by paying 50% to an agency. They should be treated as an administrative fee, not an equal service. Truth is young people have it a lot harder. Maybe old people might have to live together to save money or employ caregivers without the agency. I am confidant they will figure it out, and we can make a livable wage.

anonymous wrote: 1693 days 17 hours ago

This is one of the most poignant, huelfpl articles I have read throughout my mother's illness. She is end stages now, starting hospice care tomorrow, and I can relate to every bullet point in the article. I feel like there is another tsunami of grief headed my way as she fades away ..

anonymous wrote: 2012 days 1 hours ago

This needs to be looked at seriously does the President realize that this would drive up the cost and make it impossible for the average senior to afford care. Cleints tend to do live-in because it is affordable.