Help Wanted: Health aide pay after 10 hour-day

Depending on their hourly wage, home health aides

Depending on their hourly wage, home health aides providing companionship could be paid an extra $7.25 when their workday exceeds 10 hours -- a state rule known as the “spread of hours” provision. (Credit: iStock)

The following question is a follow-up to last month's column question about home-health aides.

DEAR CARRIE: I am the owner of two home-care agencies. One provides aides for housekeeping and the other places aides for companionship, such as protective oversight. Your recent article regarding overtime for home-health aides did not address what state and federal statutes mandate when employees work more than 10 hours a day. My employment attorney advised me some time ago that every employee who works more than 10 hours in any one day must be paid their regular hourly wages plus a one-time $7.25. Is this correct? And since, according to your article, home-health aides who work as companions are exempt from overtime, does the extra-hour rule apply to them, too? -- 11th Hour Pay?

DEAR 11TH HOUR: Yes, the rule generally applies to all hourly workers, the state Labor Department said. The provision is known as the "spread of hours" provision, and it is a state regulation, not federal. It says that employees must be paid one extra hour when they work more than 10 hours a day.


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But here's a wrinkle that could work in your favor. If the employees' daily wages are greater than 10-plus hours at minimum wage, which is $7.25 an hour, plus that extra hour at $7.25, you don't have to pay the extra hour. It's considered covered.

And you correctly note what the column said two weeks ago: When the duties of home-health aides consist primarily of housekeeping, they are eligible for overtime when they work more than 40 hours a week. But when their duties consist mainly of companionship, they don't have to earn overtime.

DEAR CARRIE: I work as a physical-therapy assistant and wanted to know if I am eligible for overtime when I work more than 40 hours a week. Physical-therapy assistants need a two-year associate's degree. I think I am eligible for overtime because many physical therapists have a bachelor's, master's or doctorate and are exempt from overtime. Am I right to assume that I am eligible for overtime pay? -- Identity Crisis

DEAR IDENTITY: You are alluding to the federal "professional exemption" from overtime that is based in part on academic credentials. And your instincts are right. You are probably eligible for overtime, or are nonexempt, because you lack what is considered an advanced degree.

"In order to qualify for a professional exemption, a person would need an advanced degree, or at least a four-year degree," said Irv Miljoner, who heads the U.S. Labor Department's Long Island office.

Here is what a Labor Department fact sheet says more specifically about the educational requirements for the professional exemption:

"The advanced knowledge must be in a field of science or learning, and the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction."

Education and overtime eligibility also come into play regarding registered nurses and licensed practical nurses. RNs are generally exempt from overtime because they obtain four-year degrees. By contrast, LPNs are eligible for overtime, or are nonexempt, because they often have two-year degrees.

Of course, other factors come into play in determining whether employees are exempt from overtime on a professional basis, such as their primary duties and their weekly pay. But education is an important starting point in the determination. For more questions, call the U.S. Labor Department at 516-338-1890.

For more on the "spread of hours" state rule go to http://bit.ly/1dQzZHw

For more on the professional exemption and overtime go to http://1.usa.gov/12ZBWjs