An analysis must be conducted to determine whether any worker in the home who provides services when the usual care provider is unable to do so (usually called a respite or relief worker) is an employee for purposes of the FLSA. As described in the previous question, whether any particular worker is an employee or independent contractor for purposes of the FLSA depends on the economic realities test, which considers whether the worker is economically dependent on the potential employer or is instead in business for herself.
Depending on the particular circumstances, a respite worker could be an employee either of the home care provider or of a public or private agency that arranges the respite care. In most cases, a provider or agency will control the worker’s services (such as by setting the worker’s schedule and directing the worker as to the tasks to be performed), the worker will have no opportunity for profit or loss but will instead receive wages, the worker will not have invested in the relationship, and the worker will provide services that are integral to the business of the potential employer. Based on those facts, the economic realities test will most often lead to the conclusion that respite workers are employees who are likely entitled to FLSA minimum wage and overtime protections.
October 2018
Tags: Home Care
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