South Florida Domestic Service Employees Unpaid Overtime Claims Lawyer
Miami, Miami Beach, Fort Lauderdale, Tamarac, Deerfield Beach, Boca Raton, Delray Beach, Boynton Beach, Unpaid over time claims filed for CNNA, HHA and nurses, nanny’s working for a Home Health Agency getting cheated out of their overtime pay. Do you provide care for children in their home or for an elderly person. Were you sent there as an employee of an agency. Does the agency pay you wages? Are you misclassified as an independent contractor? You may be entitled to a robbed wages claim against the home health agency.
A domestic services worker is a person who works within the employer’s household. Domestic workers perform a variety of household services for an individual or a family, from providing care for children and elderly dependents to housekeeping, including cleaning and household maintenance.
Who Can Claim the Exemption?
Domestic service workers who reside in the employer’s home and are employed by an individual, family, or household are exempt from the overtime pay requirement, although they must be paid at least the federal minimum wage for all hours worked.
The Department of Labor amended its regulations governing the employment of live-in domestic service workers. Under the revised regulations, effective January 1, 2015, third party employers, such as home care agencies, may not claim the overtime exemption for live-in domestic service workers, and must pay such workers at least the federal minimum wage for all hours worked and overtime pay at one and a half times the regular rate of pay for all hours worked over 40 in a workweek, even if the worker is jointly employed by the household. (See Fact Sheet #79E: Joint Employment in Domestic Service Employment Under the Fair Labor Standards Act (FLSA)
for information about joint employment.)
What are the FLSA Requirements Regarding Live-In Domestic Service Workers?
Employers must pay live-in domestic service workers at least the federal minimum wage, currently $7.25 per hour, for all hours worked. (The worker may be entitled to a higher hourly wage under state law requirements.) When a live-in worker engages in typical private pursuits such as eating, sleeping, entertaining, and other periods of complete freedom from all duties, he or she does not have to be paid for that time. For a live-in domestic service employee, such as a live-in home health aide or a nanny, the employer and worker may agree to exclude the amount of time spent during a bona fide meal period, sleep period, and off-duty time. If the meal periods, sleep time, or other periods of free time are interrupted by a call to duty, the interruption must be counted as hours worked. In these circumstances, the Department will accept any reasonable agreement of the parties, taking into consideration all of the pertinent facts. However, the employer must still track and record all hours worked by domestic service workers, including live-in employees, and the workers must be compensated for all hours actually worked notwithstanding the existence of an agreement.
The employer must maintain a copy of the agreement discussed above. If the number of hours actually worked consistently differs from the existing agreement, the employer and live-in domestic service worker must enter into a new written agreement that reflects the actual hours worked by the worker. Under the Department’s revised regulations, effective January 1, 2015, the employer is also required to keep records showing, among other things, the exact number of hours worked by the live-in domestic service worker. The employer may do this, however, by requiring the worker to record his or her actual hours worked and to submit that record to the employer. See 29 CFR § 516.2(a) and § 552.110. Some employers may develop recordkeeping forms that, for example, require the worker to identify what tasks were performed and the hours spent in various activities; others may simply require employees to keep notes by hand of their hours worked; and, of course, employers may decide to record the hours themselves. In any case, the employer’s failure to keep accurate record of hours worked may result in back wage liability. (See Fact Sheet #79C: Recordkeeping Requirements for Individuals, Families, or Households Who Employ Domestic Service Workers Under the Fair Labor Standards Act (FLSA)
, for more information.)
If you feel you have been cheated out of your overtime pay call us today.