Legal Questions And Answers For Personal Support Specialists, Personal Assistants, And Direct Support Professionals About The Fair Labor Standards Act.
by: Donald F. Fontaine

1.  Can an employer pay different rates of pay for driving, sleeping, or different functions on the job?

    Yes.  State and federal minimum wage and overtime laws do not prohibit an employer from paying at different rates.  However, the employer must pay at least the minimum wage and pay time and a half the regular rate when the person works overtime.  Think about it: “shift differentials” are common for people working difficult hours.  Some work is thought easier than others, and may be paid less.  A union can bargain about this, but alone the individual has little power to bargain. 

2.  Are “companion workers” covered by the overtime laws?

   The short answer is no.  The longer answer is more complicated.  If a companion worker works in the patient’s private home and does not administer medications, she is liable to be exempt from the overtime laws.  However, for the worker not to be covered general household work must not consume more than 20% of the total weekly hours worked.  But, this term “general household work” does include meal preparation, bed making and washing of clothes and such activities for the patient himself.

 3.   What if I perform companion services in a home not owned by the patient?

   Generally speaking, those services will not be deemed “companion services.”  Therefore, you will be eligible for minimum wage and overtime pay.

4. Do some employers really not pay overtime for people who work more than 40 hours?

  Yes, but the kinds of violations that are common are not recognized by  most people.  Employers often pay time and a half pay, but they fail to count some tasks that workers performed before the beginning of the day, during the day, or after the day ends.  They also fail to count all of the things that the employee earns besides his hourly pay, such as meals.  The result is that some workers do not receive time and a half what they really earned. 

 5.  I get to sleep during my shift.  Can the employer exclude this time from the hours that he pays me for?

  Yes and no.  If your shift is less than 24 hours, the sleeping time must be counted.  If your shift is 24 hours or more, the employer can exclude certain sleeping time if he makes an agreement with you about it.  However, the employee must really get an reasonable night’s sleep and proper sleeping facilities must be provided in a private setting in a home like atmosphere.

 6.  My employer gives me free meals.  Should they be counted?

   Yes.  Some employers who have not paid the employee’s minimum wages have been allowed to count the cost of the food they give to their employees to bring the compensation up to the minimum wage.  Similarly, if employees work more than 40 hours, the cost of the meals should be added into their earnings (no matter how much they earn) before their “regular rate” of earnings is multiplied by time and a half. 

7.  I do traveling on my job.  Should I be paid for that?

   Travel time between home and work does not count as “hours worked.”  However, once you have traveled to your place of work at the beginning of the day, travel from one place to the other during the day is “hours worked.”  Once the day begins by arrival at work, all time spent driving after that point is “hours worked.”        There is nothing in the law requiring an employer to pay you mileage.  That is negotiable.  

Fontaine Law
The Law office of Donald F. Fontaine is the recognized leader in the field of Wage and Hour Law. Unions, other attorneys, and employees in Maine and from other states call on the firm regularly for its expertise in disputes about unpaid wages, overtime pay, illegal firings, discrimination, and all kinds of unfair treatment of employees.
http://www.fontainelaw.com/