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How to pay for hours when your caregiver is “on call” will be determined by the applicable sleeping time law.
There may be times when you require your nanny or a senior caregiver for overnight care, long shifts or you may hire a live-in employee. Sleeping time laws vary by the type of shift your caregiver is working.
Typically, you’ll need to pay your caregiver for their time spent sleeping.
Here are the standards set by the Fair Labor Standards Act (FLSA).
Caregiver is on duty for less than 24 hours
Let’s say your caregiver works a 16-hour overnight shift from 5 p.m. to 9 a.m. Their charge goes to bed at some point during the evening or night. The caregiver may be allowed to sleep as well if all their other duties are completed and knowing that they must awake to respond to any of their charge’s needs. Even though they are sleeping, the caregiver remains on duty to perform work. That means they are paid for all hours on the job including those when they may be allowed to sleep. Remember overtime pay of at least time and a half likely applies to hours worked over 40 in a week.
Caregiver is on duty for 24 or more hours
If your caregiver is on the job for 24 or more hours, sleeping time and meal periods must be paid. However, you could come to an agreement with your caregiver to exclude sleeping time and meal periods from hours worked. To do this, you must provide adequate sleeping facilities and the caregiver must get eight hours of uninterrupted sleep.
If your caregiver’s sleep time is interrupted to perform work and, as a result, they get five or fewer hours of sleep, you must count all time as hours worked including hours the employee slept. If your caregiver performs work during their sleeping time but they still get more than five hours of sleep, then you need to pay only for the time the caregiver worked.
Again, rules on overtime pay may apply.
Caregiver resides on the premises
If you hire a live-in caregiver, you are typically not required to pay them for sleeping time. Your caregiver is considered to have adequate time for personal activities and can even leave the employer’s premises for personal reasons.
State laws
Your state may have its own requirements for sleeping time. While these state laws may be similar to FLSA requirements, you must comply with the provision that is more favorable to your caregiver.
For example, in California, employers can’t exclude sleep time from wages during “on-call” time even if you have an agreement with your caregiver.
Hiring a Senior Caregiver?
Download our complimentary Senior Care Payroll and Tax Guide. In this new guide, we lay out the steps on how to comply with tax, wage, and labor laws when you hire an in-home senior caregiver.
