Keeping Things Straight with Employees – Overtime
QUESTION: Bob, I have a friend who is a LPN and works for a home health care agency. She routinely works more than 40 hours per week. She asked why she is not getting overtime and the reply was that since Medicaid does not pay overtime then the company doesn’t. She has spoken to two other employees who are RN’s and they said that they receive overtime pay. Is the company breaking the law?
FROM: ROGER
INDUSTRY: HOME HEALTH CARE
Response:
Roger,
You put me in a rather awkward position as we work with the employers to help them with these types of issues and not the employees in dealing with employers. I also have to say that I am not an attorney and cannot give legal advice. But I will give you a typical lawyer response. The answer is it depends upon what your friend is doing for her clients as a caregiver. Under normal circumstance, an LPN is non-exempt which means that employers are required to pay overtime for time worked over 40 in a workweek.
On the other hand, in 1974, the FLSA created the companionship services exemption, excluding from the FLSA’s minimum wage and overtime requirements for domestic service employees who provide companionship services to the elderly in their homes. The creation of a companionship services exemption was supported by important public policy considerations. Caregivers who are exempt from the FLSA can provide lower cost services, and thus, the companionship services exemption enables more elderly and disabled people to receive needed services that might otherwise be unaffordable. For some of these individuals, the only alternative to home care and the receipt of companionship services would be institutionalization.
The fact that Medicare does not pay for overtime has no bearing on the requirement to pay overtime.
My recommendation is to have your friend speak to the next level of supervision or to someone in the human resources department to try to get this resolved internally. I rarely recommend an employee to use a third party to resolve these types of differences. Regardless of the outcome, it ruins the employment relationship.
I hope this long response helps.
Thanks for Asking Bob.
FOLLOW UP FROM ROGER
From: Roger
To: bobm@mckenziehr.com
Subject: RE: Ask Bob
My LPN friend was paid two weeks ago for all the overtime that she put in since starting with her company. The type of care she provides makes her eligible for overtime pay. The HR department was at fault and when she approached her supervisor about it, the problem was quickly resolved.
Thank you for all the time you put in for folks,
Roger