State Wage and Hour Laws Applicable to Residential Care Facilities
This sheet is meant to provide general information regarding the application of state wage and hour laws to employment in residential care facilities. It does not address state wage and hour regulations in their entirety.
Minimum Wage and Overtime Requirements
Both the minimum wage and an overtime rate of one and one-half times the regular rate of pay are required to be paid to all employees except those specifically exempted by state law. If paid on a salary basis, the amount of a non-exempt employee’s salary must at least equal the minimum wage plus any overtime for all hours worked. Excluded from coverage are individuals who are employed by a licensed adult foster home as a resident manager and are domiciled at the home. Generally, any hours worked over 40 in a work week must be paid at the overtime rate; however, hospitals and nursing homes may elect to pay overtime for work over eight hours per day and 80 hours per two-week period.
Hours Worked and Record Keeping
Non-exempt employees are required to be paid at least the minimum wage for all hours worked. Under certain conditions an employee is considered to be working even though some of the employee's time is spent sleeping or in certain other activities:
- Less than 24 hours duty: An employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep or engage in other activities when not busy.
- Duty of 24 hours or more: Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleep period. If the sleeping period is more than eight hours, only eight hours will be credited. Where no expressed or implied agreement to the contrary is present, the eight hours of sleeping time and lunch periods constitute hours worked:
(a) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable sleep period, the entire period must be counted;
(b) For purposes of this rule, a reasonable night's sleep is considered sleep time of not less than five continuous hours.
- Employees residing on employers' premises or working at home: An employee who resides on the employer's premises on a permanent basis or for extended periods of time is not considered as working all the time the employee is on the premises. Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when the employee may leave the premises for the employee's own purposes. To determine the exact hours worked, any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.
Employers are responsible for maintaining accurate time records of all hours worked. The records must be kept for at least two years.
Meal and Rest Periods
Meal periods of not less than 30 minutes must be provided to non-exempt adult employees who work six or more hours in one work period. Ordinarily, employees are required to be relieved of all duties during the meal period. Under exceptional circumstances, however, the law allows an employee to perform duties during a meal period; on such occasions, the employer must pay the employee for the whole meal period.
Paid rest periods of at least 10 minutes must be provided during each four-hour work period or major part thereof. The rest period is to be taken approximately in the middle of each work segment.
Frequently Asked Questions
Q. May employees in residential care facilities be charged a reasonable value for lodging?
A. If an employee is required to live on the premises as a condition of employment, the employee must receive no less than minimum wage and any applicable overtime. The employer may notdeduct the rental value of the housing under these circumstances, because the housing is not considered to be for the "private benefit" of the employee.
Q. If meals are provided, may employees be charged the reasonable value of the meals?
A. Yes. Meals furnished by the employer in this instance are for the "private benefit" of the employee. If eating with patients is a job requirement, the time spent must be counted as hours worked.
NOTE: When meals and (or) lodging are provided solely as a benefit for the employee, the employer may charge the reasonable value of the benefits. Payroll deductions for employee benefits must be authorized in writing by the employee.
Q. If an employee lives on the premises, what hours may be deducted for off-duty time, such as sleeping and eating?
A. If the employee resides on the employer’s premises permanently or for extended periods of time, any reasonable agreement between the employer and the employee as to hours worked will be acceptable. An agreement that does not truly reflect the employment arrangement will not be considered reasonable.
Q. What is "applicable overtime" for residential care facilities?
A. In hospitals and residential care facilities the employer has two options:
- Pay overtime for all hours employees work over 40 in a workweek; or
- Make an agreement or understanding prior to the work performance to pay 1.5 times the employee´s regular rate for hours worked over eight in any day and after 80 hours worked in a period of 14 consecutive days. Once this option is chosen for an individual employee, the agreement must remain in effect unless the employer has a justifiable business reason for changing the overtime option.
Q. If employees work 48-hour weekend shifts, are employers required to include all of those hours as time worked?
A. When employees work shifts of 24 hours or more, employers and employees may agree to deduct up to eight hours of sleep time and bona fide meal periods as long as the employees actually get that time.
Q. Is it enough to have an informal agreement that eight hours of sleep time will be allowed?
A. No. There must be a formal agreement and actual sleep hours must be scheduled. Every time the sleep period is interrupted, the interruption is counted as work time and must be paid. If the sleep time is less than five continuous hours, the entire sleep period must be paid.
Q. Do meal periods count as time worked?
A. If the employee is required to eat with the residents, that time is considered work time. Even if the employee eats with the residents by choice and then helps residents with their meals or becomes the source of supervision for the meal period, this will count as time worked.
Q. If an individual takes care of elderly people in his or her home and hires two part-time people to help care for them, would the home be considered a residential care facility?
A. Yes, and all of the minimum wage and overtime requirements would apply to any employee hired.
Q. If an employee is scheduled to work from 5:00 p.m. to 8:00 a.m. and sleeps part of that time, may the employer deduct the sleep time from hours worked?
A. Since the shift is less than 24 hours, all of the hours must be paid even if the employee is allowed to sleep part of that time.
Q. Are employers required to pay sleep time at the same rate as other hours work?
A. Employers may make agreements with employees to pay less than the regular rate for sleep time, but not less than the minimum wage.
Q. If an employer terminates an employee who lives on the premises, may the employer require the employee to move immediately?
A. It is important to have written policies regarding termination and vacating the premises. Employers should have legal advice in adopting such a policy. Employees should read and understand the policy prior to employment.
Q. If an employer hires a couple to help in a residential care facility, is one salary sufficient compensation?
A. No, each person must be paid separately, according to the individual hours worked.
Nothing on this
website is intended as legal advice. Any responses to specific questions
are based on the facts as we understand them, and not intended to apply to any
other situations. This communication is not an agency order. If you
need legal advice, please consult an attorney. We attempt to update the
information on this website as soon as practicable following changes or
developments in the laws and rules affecting Oregon employers, but we make no
warranties or representations, express or implied, about whether the
information provided is current. We urge you to check the applicable
statutes and administrative rules yourself and to consult with legal counsel
prior to taking action that may invoke employee rights or employer responsibilities
or omitting to act when required by law to act.
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