Home Care Workers

You work for an HCBS provider in New Mexico or Texas. You support people with intellectual or developmental disabilities, frail elderly clients, or medically fragile adults in their homes or in small group homes. Your agency bills the New Mexico DD Waiver, the Texas Home and Community-based Services (HCS) program, the Texas Home Living (TxHmL) program, the Community Living Assistance and Support Services (CLASS) program, or a similar Medicaid waiver. You drive between clients, cover overnight shifts, document everything in a state system, and your check often does not include overtime, no matter how many hours you actually worked.

I represent these workers. The wage and hour rules that protect you are clear, and the most common defenses agencies raise do not hold up.

Who I Represent

• Personal care attendants (PCAs) and certified nursing assistants (CNAs)
• Direct support professionals (DSPs) in DD Waiver and HCBS programs
• Home health aides and home care workers
• Group home staff, house managers, and overnight residential workers
• Habilitation specialists, community living assistants, and respite workers
• Individual providers paid through fiscal management services (FMS) agencies
• Workers in NM DD Waiver, Mi Via, TX HCS, TxHmL, CLASS, STAR+PLUS, and similar HCBS programs
• Anyone in direct care paid flat rates, weekly salary, per-visit, or as a 1099 contractor

The 2015 Companionship Exemption Rule, and Why It Matters Here

For decades, home care workers were excluded from the FLSA's overtime protections under the "companionship services" exemption. In 2013 the Department of Labor rewrote the rule, and the change took effect in 2015. The new rule at 29 C.F.R. § 552.109(a) does two things that matter for HCBS workers.

First, the exemption now applies only to workers hired and paid directly by the family or individual receiving care. If a third-party agency, provider company, or staffing entity is the employer, the exemption is unavailable, full stop, even if the worker spends 100 percent of her time on traditional companionship duties.

Second, even for directly hired workers, the exemption is narrower than it used to be. It now applies only to true fellowship and protection (sitting with, talking to, supervising, providing company), with no more than 20 percent of the worker's time spent on care services like bathing, dressing, meal preparation, and incidental household work. Any medically related task performed by trained personnel is outside the exemption regardless of percentage.

In practical terms, the great majority of HCBS, DD Waiver, and home care arrangements run through an agency. That means the agency is the FLSA employer, and the companionship exemption is off the table. Overtime is owed on every hour over 40 in a workweek.

Common Violations

Sleep time deducted from shifts under 24 hours. You work a 12- or 16-hour overnight shift in a group home or client residence. Your employer deducts eight hours for "sleep time," whether you slept or not, whether you were interrupted or not. Under 29 C.F.R. § 785.21, sleep time can only be excluded from working time if the shift is 24 hours or longer. On any shift under 24 hours, all the time spent at the duty station is compensable, including any time you spent sleeping.

Sleep time deducted from 24-hour shifts without meeting the requirements. For shifts of 24 hours or more, 29 C.F.R. § 785.22 permits the employer to deduct up to eight hours of sleep time, but only if four conditions are met: (1) there is an express or implied agreement between the parties, (2) the employer provides adequate sleeping facilities, (3) the employee can usually get at least five hours of uninterrupted sleep, and (4) any interruption is counted as paid work. If any condition fails, the entire eight hours becomes paid time.

Travel between clients not paid. You drive 30 minutes from your first client to your second, then another 25 minutes to a third. Your agency pays only for the hours at each client's home and treats the driving as personal time. The driving is work. The FLSA requires it to be compensated, and the unpaid driving usually pushes your weekly total over 40, which adds an overtime premium on top of the straight time.

Multi-site travel ignored. Required visits to the agency office to drop off documentation, mandatory training sessions, team meetings, and any agency-required errand during the workday are paid time. Many agencies pay only billable Medicaid hours and ignore everything else.

Off-the-clock documentation. State HCBS programs require detailed daily documentation in electronic systems like Therap, ClientCONNECT, or the New Mexico Therap-NM system. You finish the shift, then spend 30 to 60 minutes entering session notes and service logs from home. Your employer treats it as "your responsibility" and does not pay for the time. Documentation required by the employer is paid time, period.

Misclassification as 1099 contractors. Some HCBS and FMS agencies issue 1099 forms to DSPs and PCAs. The agency still assigns the client, sets the rate, dictates the schedule, requires specific training, controls documentation in the state Medicaid system, and forbids direct solicitation of the client. None of that is the work of an independent business. Under the FLSA's economic reality test, those workers are employees regardless of the tax form.

Salary misclassification of "Program Coordinators" and "QIDPs." Mid-level positions like program coordinator, service coordinator, case manager, and qualified intellectual disability professional (QIDP) are sometimes paid a flat salary with no overtime, on the theory that they are exempt administrators or professionals. The actual job is usually a mix of direct service, paperwork, scheduling, and coordination, none of which meets the strict duties tests for the executive, administrative, or professional exemptions. Salary alone does not create an exemption.

Live-in worker rules misapplied. The live-in domestic service worker rules at 29 C.F.R. § 552.102 are narrow. They cover only workers who actually reside permanently or for extended periods at the employer's premises, and they still require overtime payment unless the limited 13(b)(21) exemption applies. Most overnight or weekend rotation work does not qualify, and agencies that claim otherwise are usually wrong.

The "the Medicaid rate does not cover overtime" defense. Some agencies claim they cannot pay overtime because the state Medicaid reimbursement rate is fixed. The FLSA does not care what the employer is paid by Medicaid. The overtime obligation runs from the employer to the worker, not from the state to the worker. If the business model only works by underpaying staff, the model violates federal law.

How the Law Protects You

The FLSA covers HCBS and home care work, and there is no general exemption for residential care, group home work, or services provided under DD Waiver or other Medicaid programs. Workers in these settings are non-exempt employees entitled to time and a half for every hour over 40 in a workweek.

The economic reality test determines whether you are an employee or a true contractor under the FLSA. Courts look at the degree of control the agency exercises over how the work is done, your real opportunity for profit or loss, the relative investment each side has made in tools and equipment, the skill and independent initiative the work requires, and how permanent the relationship is. Courts also consider whether the work is integral to the agency's core business. For a DSP or PCA placed through an HCBS agency, every factor usually points to employment.

The sleep time rules are mechanical, not discretionary. On any shift under 24 hours, sleep time cannot be deducted. On a shift of 24 hours or more, the four conditions in § 785.22 must all be met, in writing, before any deduction is lawful. Agencies that deduct sleep time without meeting these requirements owe the wages for those hours plus liquidated damages on top.

Travel between work sites during the workday is paid time under 29 C.F.R. § 785.38. The only travel that is unpaid is the ordinary commute from home to the first work site and from the last work site back home.

If you work in New Mexico, the New Mexico Minimum Wage Act runs alongside the FLSA and provides treble damages for unpaid wages, which can produce a larger recovery than the FLSA's liquidated damages doubling. Texas does not have a state wage-and-hour overtime statute, so Texas cases proceed under the FLSA, with state-law contract claims available in some situations.

Limits: When the Companionship Exemption Does Apply

I want to be clear about what the law does not do. The companionship exemption was narrowed in 2015, but it was not abolished. There is a small set of arrangements where the exemption still works, and a worker in that situation may not have an overtime claim.

The exemption can still apply when a family or individual recipient hires a worker directly, pays the worker directly (not through an agency or fiscal-management service), and the worker's duties are limited to true fellowship and protection with no more than 20 percent of her time spent on care services. The duties cannot include any medically related task performed by trained personnel. If all of those conditions are met, the worker is exempt from both overtime and minimum wage.

A few additional limits are worth flagging. Genuinely live-in domestic service workers covered by the narrow rules at 29 C.F.R. § 552.102 may be exempt from overtime even if they are owed minimum wage. Workers performing only casual babysitting, on an irregular and intermittent basis, are also excluded from FLSA coverage entirely. And small private-household employers with no enterprise coverage and no individual coverage for the worker may sometimes fall outside the FLSA, though that is rare in modern HCBS work given the broad reach of federal commerce coverage.

For agency-employed workers in DD Waiver, HCS, TxHmL, CLASS, and similar HCBS programs, none of these limits applies. The agency is the third-party employer, the exemption is barred by § 552.109(a), and overtime is owed.

What Your Case Could Be Worth

HCBS and home care cases produce significant recoveries because the violations recur every week, often for years.

Take a DSP earning $15 per hour, working 55 hours per week in a group home with no overtime paid. The overtime premium owed is $7.50 per hour for the 15 hours per week over 40, which comes to $112.50 per week. Over two years (104 weeks), that is $11,700 in unpaid overtime premiums. With FLSA liquidated damages doubling the recovery, the case is worth $23,400.

Add unpaid sleep time deductions on overnight shifts, unpaid travel between clients, and unpaid documentation hours, and a single-plaintiff case can run from $20,000 to well over $50,000. Where multiple workers at the same agency share the same pay practices, a collective action under 29 U.S.C. § 216(b) can produce much larger recoveries.

In New Mexico, the New Mexico Minimum Wage Act adds treble damages on top of the FLSA's regular remedies, which can substantially increase the value of the case. A worker filing under both statutes typically recovers under whichever produces the larger number.

No Cost to You

I work on a contingency fee basis. You pay nothing upfront. If there is no recovery, you pay nothing, not even the costs.

Contact Me

30+ years employment law experience. 15+ years FLSA-only. I represent HCBS and home care workers across New Mexico and Texas, in federal district courts in both states, and against agencies billing all major Medicaid waiver programs.

If you have been working as a DSP, PCA, home health aide, or other direct care worker without overtime pay, with sleep time deducted from overnight shifts, with unpaid travel between clients, or on a 1099 when you should be on a W-2, call me. I will walk through how you were paid, how your time was tracked, and whether you have a case.

Call me at (512) 799-2048.

Related Reading

• Healthcare Workers. Travel time, charting time, automatic lunch deductions, and the companionship exemption across the broader home health and facility setting.
• Independent Contractors. The economic reality test and how courts treat agency-issued 1099s when the worker is clearly economically dependent on the agency.
• Off-the-Clock Pay. Documentation work, training time, and other unpaid tasks that should have been on the clock.
• Salary Misclassification. When a "Program Coordinator" or "QIDP" salary does not actually qualify for an FLSA exemption.
• Why a Manager Title Does Not Eliminate Overtime. The duties test that QIDPs and program coordinators usually fail.