If an employee works over 40 hours a week, such as live in or overnight service, does an employer need to pay overtime?

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If an employee works over 40 hours a week, such as live in or overnight service, does an employer need to pay overtime?

We are starting a non-medical caregiving company. Our employee’s are considered personal attendants where job does not have over 20% of their work time spent housekeeping.

Asked on January 16, 2012 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Any time an employee who is not exempt from overtime works more than 40 hours a week, he or she must be paid overtime. There is an exemption for workers who provide "companionship" services; below I'll include a link to a helpful FAQ sheet by the Department of Labor on this subject.

The answer to your question is that while it seems at first glance that your workers would be exempt from overtime, it is *very* easy to fall out from under this exemption, if the employee's duties don't quite match what is required. You are advised to consult directly with an employment law attorney who can help you design the duties of your workers such that they will not be eligible for overtime. Given that the consequences of misclassifying are drastic--not just payment of back overtime, but often payment of legal fees and additional damages--it is worthwhile to work with an attorney at the outset, to make sure you are compliant.

Here is the link: http://www.dol.gov/whd/regs/compliance/whdfs25.pdf


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