Coke, Is It the Real Thing? Applying the Fair Labor Standards Act to the Home Care Industry
Update on Coke v. Long Island Care at Home
What Constitutes "Hours Worked"?
Generally speaking, all time that is spent for your agency's benefit, with your agency's knowledge, is considered to be "hours worked." This applies even if you have not requested the time. (The standard is whether you have "suffered or permitted" the worker to perform.) If you know or have reason to believe the home care employee is continuing to work beyond authorized hours, the time is working time.
What Does This Include?
Travel Time - You must pay home care employees for travel time between work assignments during the workday. You do not have to pay them for travel time commuting from home to their first assignment or from their last assignment of the day back home. However, if the employee has gone home for the day and is called to go to an emergency assignment, travel to the emergency assignment is hours worked and wages must be paid. Generally, you must also pay employees for travel time if you request them to come into the agency (incident meetings; grievances; discipline; investigations of other employees, etc.).
Meal Periods - If home care employees are not completely relieved of duty during meal periods, you must pay them for the meal periods. Also, you must give at least minimum duration meal period(s) to employees who work the following schedules:
- > 6 hour assignment extending over 11:00 a.m. - 2:00 p.m.: minimum 30 minute meal period between 11:00 a.m. - 2:00 p.m.
- > 8 hour assignment extending over 11:00 a.m. - 7:00 p.m.: minimum 20 minute meal period between 5:00 p.m. - 7:00 p.m.
- > 6 hour assignment during 1:00 p.m. - 6:00 a.m.: minimum 45 minute meal period midway during assignment.
Waiting Time - Depending on the particular circumstances, you may have to pay employees for waiting time. The test is whether the employee was "engaged to wait, or ... wait[ing] to be engaged." You must pay home care employees for time they are "engaged to wait" as part of their responsibilities. These generally involve situations when the employees must be ready to perform on a moment's notice and are limited in their ability to use the time for personal activities. Conversely, you do not have to pay employees for time they are "waiting to be engaged." During these periods the employees are relieved of duties and can use the time effectively for personal activities.
On-Call Time - If employees cannot use on-call time effectively for their own purposes, it is compensable. Whether this is the case depends primarily upon: 1) on-premises living requirement; 2) excessive geographical restrictions on employee movements; 3) frequency of calls unduly restrictive: 4) fixed time limit for response to on-call is unduly restrictive; 5) on-call employee could easily trade on-call responsibilities with another employee; 6) use of a pager would ease restrictions; and 7) the employee has actually engaged in personal activities during the on-call time.
Sleeping Time - You must pay sleep-in home care employees for all hours worked, excluding a regularly scheduled sleeping period of not more than 8 hours, provided adequate sleeping facilities are furnished. The employee must be able to get at least 5 hours of sleep, uninterrupted by a call to duty, and agree to this exclusion of the sleeping period.
Training Time - You must pay home care employees for training time unless 1) attendance is outside the employee's regular work hours; 2) attendance is voluntary: 3 the course, lecture, or meeting is not directly related o the employee's job: and 4) the employee does not perform any productive work during such attendance.
Employment Physicals - You must pay home care employees for the time they spend at annual physicals. In contrast, when you require a pre-employment physical prior to employment, you do not have to pay the applicant for the time spent at the physical.
Recording Working Time - You must maintain certain wage and hour records. The following records should be kept: (i) vital statistics: name, address, sex, job, title, regular workweek; (ii) earnings history: amounts paid, regular rate, earnings, overtime premiums, wage deductions, taxes and other amounts withheld; and (iii) hours worked. For employers covered both by the FLSA and New York Labor Law, all records should be kept at least six years.
How Do You Calculate Overtime?
What Hours Are Overtime?
All hours worked over 40 in a workweek are overtime hours. A workweek is seven consecutive 24 hour periods which, once established, may only be changed if intended to be permanent and not designed to evade overtime. Any combination of assignments - 4, 6, 8, 10, 12, or 24 hour assignments - that result in an employee working more than 40 hours in a workweek requires the payment of overtime for all hours over 40. Compensatory time in lieu of paid overtime is not recognized under law.
How Do You Calculate The "Regular Rate"?
The "regular rate" is the hourly rate actually paid to the employee for her normal non-overtime work-week calculated by dividing straight-time earnings by the number of hours worked in the workweek. However, it is not necessarily the employee's base rate of pay. Differential pay may increase the employee's regular rate. For example, during a workweek, if an employee works 32 hours on weekdays at $9.10 per hour, and 16 hours on Saturday and Sunday at $10.20 per hour ($9.10 plus a $1.10 per hour differential payment), the employee's regular rate for that workweek is a blended rate of $9.47 per hour. This is the weighted average of the two hourly rates.
Relevant Exclusions to the Regular Rate
- Paid hours when no work is performed , e.g., vacation, sick, and personal days, and holidays.
- Premium pay for a holiday, e.g., 11/2 or double time pay.
- Travel pay, e.g., public transportation between assignments during the day.
What is a Time-Off Plan?
You may elect to give an employee time off instead of paying cash for overtime if done within the same payroll period that the overtime is worked. In concept, you are laying the worker off in one week of the pay period to balance overtime in the other week.
For example, an employee is paid bi-weekly at the rate of $364 per week for a total of $728 per pay period. If s/he works 44 hours the first week of the pay period, s/he would be entitled to $418.60 for the week, i.e., ((40 hours x $9.10) plus (4 hours x $13.65)). To avoid paying more than $728 for the pay period, you allow the employee to work only 34 hours the second week of the pay period. Thus, s/he would be owed $309.40 for that week's work (34 hours x $9.10), and the total for the pay period would be $728 ($418.60 + $309.40).
THIS OUTLINE IS PREPARED FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED AND SHOULD NOT BE CONSIDERED LEGAL ADVICE, AND NO ACTION SHOULD BE TAKEN BY YOUR AGENCY IN RELIANCE ON ANY STATEMENTS CONTAINED HEREIN. PLEASE CONSULT YOUR LABOR COUNSEL FOR ADVICE ON YOUR AGENCY'S SPECIFIC SITUATIONS.
