1099 independent Contractor vs. W-2 Employee
If you control your employees’ schedule, what they do, how they do it, and their wages, the IRS regards them as W-2 employees. By contrast, if for example a lawn contractor offers his services to the public at large, brings his own tools, and controls how your lawn is serviced, then he is an independent contractor. The control of “how the work is done” is one of the central premises in these considerations.
FLSA Rulings for In-Home Caregivers
Whereas the Department of Labor (DOL) had in the past exempted home care workers from regulations applicable to non-household employees, the Fair Labor Standards Act (FLSA) reversed those rulings and gave home care workers who provide companionship and live-in services protections including guaranteed minimum wages and overtime pay for hours worked over 40 a week.
Personal Attendants’ Overtime Pay Rate
Overtime hours are paid at 1.5 times the regular hourly rate.
Live-in Personal Attendants’ Sleep Hours
Live-in caregivers do not have to be paid for up to 8 hours of sleeping time when they work 24 consecutive hours or more.
DOL Final Rule in Home Care
The U.S. Court of Appeals subsequently unanimously upheld the DOL Rule, reaffirming the above overtime and sleep hour rules.
California Caregiver Registry
The Department of Social Services Home Care Aide Registry (secure.dss.ca.gov/ccld/hcsregistry/About.aspx) provides individuals with the ability to locate a Home Care Aide (HCA) who has completed the criminal background check process administered by the California Department of Social Services. In addition, this website enables Home Care Aides to be listed on the Home Care Aide Registry.
Licensing of Home Care Organizations
The State of California passed a law in 2016 that requires home care agencies that provide in-home non-medical services to use only caregivers who have been background-checked and registered by the state.