Fair Labor and Standards Act

Date: December 17, 2008

Jennifer was hired by Bob and Mary to provide companion services for Bob\’s elderly father. Jennifer would help Bob\’s father dress and do the housecleaning and cooking for him as well.

At first, Jen would be paid for 40-hour work weeks, but as time went on and Bob\’s father became more dependent, Jennifer\’s hours increased dramatically to the point where she was spending nights at Bob\’s father\’s home. Jennifer felt that since she was now working more than 40 hours a week, she should be entitled to overtime, pursuant to the Fair Labor and Standards Act.

Issue: Is Jennifer entitled to overtime pay.

Answer: The FLSA provides a federal floor for workers\’ wage and hour rights, but some states, including Pennsylvania, have enacted more generous wage and hour laws and regulations. Unfortunately for Jennifer, Pennsylvania Minimum Wage Act exempts from its minimum wage and overtime provisions domestic services in or about the private home of the employer.

An attorney representing Jennifer may argue that, in actuality, it is Bob and not his father who is her employer. Nevertheless, Bob will be able to prove that he was using funds of his father to pay Jennifer and was essentially only acting as his father\’s agent in hiring Jennifer to do the in-home care. It is most likely in this situation that Jennifer will not be entitled to overtime pay.

It would have made no difference if Jennifer had worked out of a private agency. Under Federal Law, home health aides are exempt from the Fair Labor and Standards Act\’s minimum wage and overtime provisions as well.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Joe Price
Attorney Joe Price is a seasoned Trial Lawyer serving Northeast, Central and Southeast Pennsylvania for the past forty (40) years. He has handled serious personal injury cases in courts throughout the Federal system including New Jersey and New York. Attorney Price is A.V. Rated by Martindale Hubble. He is Board Certified in Civil Practice by the National Board of Trial Advocacy since 1996.