Do live in caregivers in Care homes have to be paid hourly ? An ex employee made a complaint to DOL and we have an investigator coming out.

The FLSA covers persons employed in domestic service in households.Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term "domestic service employment." An employee who performs companionship services in the employer's private home is exempt from the FLSA's minimum wage and overtime requirements if all criteria of the exemption are met. "Companionship services" means services for the care, fellowship and protection of persons whose advanced age or physical or mental infirmity makes them unable to care for themselves.This includes household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services. It also includes general household work, as long as it does not exceed 20 percent of the total weekly hours that the companion works. Where you exceed this 20 percent limitation, you must pay the employee for all hours in compliance with the FLSA's minimum wage and overtime requirements. "Companionship services" does not include services that trained personnel such as registered or practical nurses perform. Registered nurses are exempt from the FLSA's wage requirements if their time is spent in the performance of the duties of a nurse and are paid on a salary or a "fee basis" as defined by DOL Regulations, 29 CFR Part 541. Individuals other than trained personnel (such as nurses) who attend to invalids who are infants and young children are considered companions, rather than babysitters, and their status may thus fall within the companion exemption to minimum wage and overtime reuirements Covered domestic service employees who reside in the household where they are employed are entitled to the minimum wage but may be exempt from the Act's overtime requirements. The DOL Rule is will change in January of 2015. It recently revised its regulations defining companionship services so that many direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers will be protected by the FLSA. It also revised the regulations concerning live-in domestic service workers, effective January 1, 2015. The DOL's Final Rule makes two significant changes: (1) the tasks that comprise exempt "companionship services" are more narrowly defined; and (2) the exemptions for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services rather than third party employers such as home health care agencies. The Final Rule also revises the recordkeeping requirements for employers of live-in domestic service employees. A final piece of advice: make sure you have all of your required Department of Labor posters up on the bulletin boards where employees will be able to see them. That is the first place that the investigator will look for violations.  Michael A. Caldwell 404-979-3154dssd