Help Wanted: Work-hour limits, overtime for home-health aides

New York State doesn't limit the number of

New York State doesn't limit the number of hours employees 18 and older can be required to work a day. But state law mandates a day of rest for a few occupations. Federal law doesn't limit the number of on-the-job hours for employees 16 and older. (Credit: iStock)

DEAR CARRIE: How many hours a day and week are home health aides required to work? My sister works for a nursing agency and averages 80 to 100 hours a week. Sometimes she works 19 hours in a single day. Despite those incredibly long days she doesn't earn overtime. The agency contends it doesn't have to pay overtime because she makes $10.35 per hour, which is more than $3 above minimum wage. This doesn't seem right to me. -- Sisterly Concern

DEAR SISTERLY: Your question raises two key issues: whether your sister's employer by law must limit her work hours and whether it must pay her overtime.

As for the hours, New York State doesn't limit the number of hours employees 18 and older can be required to work a day. But state law mandates a day of rest for a few occupations. Federal law doesn't limit the number of on-the-job hours for employees 16 and older.

"People are often surprised and sometimes appalled to learn that there is no maximum-hour standard in federal labor law" for workers 16 and up, said Irv Miljoner, who heads the U.S. Labor Department's Long Island office.

The overtime question is more complex. First of all, overtime is computed on a weekly basis, not daily. Eligible hourly workers must be paid overtime when they work more than 40 hours a week, a threshold your sister easily surpasses. But whether a home health aide must earn overtime depends on the employee's duties.

If your sister's work primarily consists of companionship, then her employer doesn't have to pay her overtime, Miljoner said. Even if her employer required some light housekeeping and your sister still largely acted as a companion, the employer wouldn't have to pay her overtime, he said.

"Whether she is or not due the overtime premium is a function of the actual duties she performs," Miljoner said. "If her work is primarily companionship, then she may be exempt from overtime."

Companionship services include "the care, fellowship and protection" of people who can't care for themselves because of an illness or advanced age, the U.S. Labor Department's website says.

The company's justification for not paying her overtime is peculiar. As you can see, the litmus test is not how much she earns per hour but what her duties are.

Your question is timely because the Labor Department is contemplating new regulations that would make more home health aides eligible for overtime.

Those regulations, if adopted, would require staffing agencies to pay home health aides overtime, even if they primarily provide companionship. Since your sister works for an agency, she would have to be paid overtime if those regulations take effect.

Aides employed by families to provide companionship would still be exempt from overtime.

DEAR CARRIE: I quit my job at a pharmaceutical company last year because of an abusive boss. He asked me to sanitize a room so a temp employee could do work. But he was unhappy with my work, screamed at me and ordered me to leave. It wasn't the first time. He has gone on numerous tirades against my co-workers and me. On my last day, he told me to leave or he would call the police. I left, and I later resigned. I am wondering if I am eligible for unemployment benefits.

-- Screaming Boss

DEAR SCREAMING: Generally if you quit, you aren't eligible for benefits. Since your situation is so unusual -- if not bizarre -- the State Labor Department won't know if you're eligible until you apply. And it says you can apply despite the one-year delay.

"The circumstances will be investigated, and an eligibility determination will be made," the department says.

 

For more on proposed changes to home-health aide regulations go to http://1.usa.gov/11RysKk

For more on unemployment-insurance benefits eligibility go to http://bit.ly/17CN6O6