Determining the compensable hours for a live-in caregiver is complex, depending heavily on federal and state labor laws regarding the definition of compensable time versus mere presence. This requires employers and employees to precisely understand which hours count as work.
Defining the Live-In Domestic Service Employee
The specialized rules for calculating a live-in caregiver’s hours apply only if the employee meets the federal legal definition of a “live-in domestic service employee.” This classification requires the employee to perform household services, such as caring for the aged, infirm, or disabled, and reside on the employer’s premises either permanently or for an extended period.
Extended residency is generally defined as living, working, and sleeping on the premises for five consecutive days or 120 hours or more per week. An employee on a 24-hour shift who does not meet this residency requirement is not considered “live-in” for these rules. Establishing this classification is necessary to use the unique methods for calculating compensable hours.
The Distinction Between Presence and Compensable Work
Unlike standard hourly employees, who are paid for all time spent at the workplace, a live-in caregiver is present 24 hours a day but is not necessarily working the entire time. The distinction is made between “on-duty” time and “off-duty” time. On-duty time, when the caregiver is actively working or required to be available, must always be paid.
Off-duty time refers to periods when the caregiver is completely relieved of all duties and is free to pursue personal activities, including leaving the premises. The law allows employers and employees to agree to exclude certain periods of this personal time, such as sleep and meal periods, from compensable hours worked. This separates the total hours of presence (168 hours weekly) from the actual paid working hours.
Federal Rules for Calculating Working Hours
The Department of Labor provides specific guidelines on which hours a live-in caregiver must be paid for, allowing certain exclusions from the total time spent on the premises. These guidelines assume the employee and employer have a reasonable agreement defining work time versus personal time.
The Rules for Sleep Time
Federal regulations permit the employer and caregiver to agree to exclude a scheduled sleep period of up to eight hours per night from compensable hours. To qualify, the employee must be provided with adequate sleeping facilities, typically a separate, private bedroom.
The caregiver must have the opportunity to receive a minimum of five hours of uninterrupted sleep. If sleep is interrupted by duty calls, resulting in less than five hours of sleep, the entire eight-hour period must be counted as compensable working time. If the caregiver receives more than five hours of sleep despite interruptions, only the time spent performing duties during the interruption must be paid.
Counting Meal and Downtime
Bona fide meal periods and other periods of genuine private downtime can also be excluded from hours worked. A meal period is considered bona fide if it lasts 30 minutes or more and the employee is completely relieved of all duties. If the caregiver must eat with the client or remain ready to respond to a need, the time is not a true off-duty break and must be counted as hours worked.
Any other period when the caregiver is completely free from responsibility and can pursue personal activities is not compensable. If the caregiver is required to remain on the premises or their freedom is restricted, the time is likely considered “on-call” and must be paid. The employer and employee should have a clear, documented agreement defining these non-compensable periods.
Standard Scheduling Models in Live-In Care
The flexibility in excluding non-work periods has led to common scheduling models utilizing legal exclusions. A typical arrangement involves a caregiver present for five consecutive days (120 hours), followed by two days off.
Assuming a maximum exclusion of eight hours of sleep and three hours of meal/downtime per 24-hour period (11 hours total), the compensable hours for a five-day presence could be around 65 hours (120 hours present minus 55 hours excluded). Another common model involves two caregivers rotating seven days on and seven days off. Although the caregiver is present for 168 hours, compensable hours often range from 40 to 60 hours per week after applying legal exclusions for sleep and personal time.
Overtime and Wage Requirements for Live-In Caregivers
Under the Fair Labor Standards Act (FLSA), a live-in domestic service employee employed directly by an individual, family, or household is typically exempt from federal overtime requirements. This means the employer does not have to pay time-and-a-half for hours worked over 40 in a workweek.
This overtime exemption only applies to caregivers employed directly by the household. If a third-party employer, such as a home care agency, employs the caregiver, the agency cannot claim the exemption and must pay overtime for all hours worked over 40 in a workweek. Regardless of the overtime exemption, all compensable hours must be paid at least the federal minimum wage.
Impact of State Laws on Working Hours and Wages
While federal law provides a baseline, many states have enacted labor laws that override the federal live-in overtime exemption, changing the calculation of compensable hours and wages. The regulation most advantageous to the worker must always be applied, meaning state law often dictates the final compensation structure. States like California, New York, and Massachusetts require live-in caregivers to be paid overtime.
California requires daily overtime after nine hours and weekly overtime after 40 hours. Furthermore, California does not permit the exclusion of sleep time from compensable hours for live-in workers; all time spent on the premises is considered hours worked, except for bona fide, uninterrupted breaks. In New York, live-in employees must be paid overtime for hours worked over 44 in a workweek. These state mandates mean the number of paid hours can be substantially higher than the federal minimum standard, requiring employers to check local regulations for compliance.