- I’ve heard that minimum wage isn’t required for casual housecleaning. What does casual mean here?
Under Oregon law, minimum wage and overtime are not required for domestic service work performed on a casual basis in or about a family home. Here, “casual” employment means work that is irregular and intermittent. The term does not apply to anyone whose vocation is providing domestic services. OAR 839-020-0004(6).
Federal law comes at the issue differently but ends up in roughly the same place. Federal law doesn’t “exempt” casual domestic service work (apart from babysitters), instead the federal law only requires minimum wage and overtime for domestic service workers once
either of the following is true:
- The employee's compensation would constitute wages under the Social Security Act, (currently $2,200 for 2020); or
- The employee performs domestic service work for one or more employers for more than 8 hours in the aggregate in any workweek.
NOTE: Domestic service work as a babysitter or as a companion to the elderly or infirm is handled differently. (See below.)
- I do babysitting work for a family up the street, am I exempt?
Oregon minimum wage law exempts babysitting (not to be confused with working in a child care center) for all workers. A separate law requires overtime for adults who perform babysitting outside of a casual basis.
Federal law also exempts “casual” babysitters. For babysitters, “casual” is defined to mean employment which is irregular or intermittent, and which is not performed by an individual whose vocation is babysitting.
Bottom line? Babysitters working outside of a casual basis are entitled to at least federal minimum wage and overtime.
NOTE: Wage and hour law doesn't define or destinguish between babysitters and nannies (see below). In general usage, nannies are more likely to work a set schedule and play a more involved role in the child's life.
- Are nannies exempt from minimum wage and overtime?
Nannies are entitled to at least federal minimum wage and overtime. Here’s how it works:
Oregon law generally exempts an individual who performs child care services (either in the home of the individual or in the home of the child) from state minimum wage and overtime requirements. However, under federal law a nanny would still be entitled to federal minimum wage (currently $7.25 per hour).
Federal law also requires overtime, unless the domestic worker resides on the premises for an extended period of time. Even so, a separate Oregon law requires domestic service workers to be paid overtime on the worker’s base rate for hours worked over 40 in a work week (or over 44 hours if the domestic worker lives in the home).
- I’m looking into providing companionship services for people who need someone to be with them because of their age or a disability. Does that work require minimum wage? Overtime?
That depends. Both state and federal laws exempt companions to the elderly or infirm who are employed in a family home from minimum wage and overtime if the companion is employed by an individual or household. If you work as a companion for a third party service, however, they would need to ensure you are paid minimum wage and overtime for hours worked over 40 in a workweek.
It also worth noting that the exemption for companionship services is different under state and federal law. If you are exempt under state law, but not federal law you would still need to receive federal minimum wage and any applicable overtime.
Under Oregon law, exempt “companionship services” includes fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for their own needs. These services may include household work related to the care of the elderly or infirm person such as meal preparation, bed making, washing of clothes and other similar services. They may also include general household work, provided that such work does not exceed 20 percent of the total weekly hours worked.
The exemption under federal law is more narrow. The exemption is not available to third party employers such as home health agencies. In addition, the scope of exempt “companionship services” is limited to the provision of “fellowship” and “protection.”
- The provision of “fellowship” means to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events.
- The provision of “protection” means to be present with the person in his or her home or to accompany the person when outside of the home to monitor the person’s safety and well-being.
Federal regulations do permit some provision of “care” as part of companionship services so long as the care does not exceed 20 percent of the total hours worked per person and per workweek. The term “care” under federal regulations means assisting the person with:
Activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and
Instrumental activities of daily living, which are tasks that enable a person to live independently at home (such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care).
Note: Under federal law, the term “companionship services” does not include any domestic services performed primarily for the benefit of other members of the household.
In all cases, companionship services do not include services which require and are performed by trained personnel like registered or practical nurses. Companions who provide these kinds of services would need to receive minimum wage and overtime law.
- What other protections apply to domestic service workers?
Under Oregon’s Domestic Worker Protection Act, domestic workers are entitled to at least 24 consecutive hours of rest each work week. If the employee agrees to work during this day of rest, the employer would need to pay for that work at an overtime rate.
Live-in domestic workers are also entitled to at least eight consecutive hours of rest within each 24-hour period and adequate facilities for uninterrupted sleep. Live-in domestic workers must also be allowed to cook their own food, subject to restrictions based on the religious or health needs of the home’s residents.
Finally, if a domestic worker averages at least 30 hours of work per week during the previous year, they must receive at least three paid personal days off.
- What are the rules around eating and sleeping on the premises?
If the duty shift is 24 hours or longer, the employer and employee may agree to exclude meal periods when the employee is relieved of all duty for at least 30 continuous minutes, and a regularly-scheduled sleeping period of up to eight hours from paid hours worked. In this case, the employer would also have to furnish adequate sleeping facilities ensure that the employee can usually enjoy an uninterrupted sleep period.
Note: Without an express or implied agreement, meal periods or sleep time may not be excluded from paid time. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the interruptions prohibit the employee from getting at least five continuous hours of sleep time, the entire period must be counted as hours worked.
For domestic workers who
reside on the premises, an employer must provide at least eight hours of rest within each 24-hour period and a space with adequate conditions for uninterrupted sleep. If the period of rest is interrupted by a call to duty, any time worked during the rest period must be paid at one and one-half times the employee’s base rate, regardless of the number of hours worked in that work week.
Of course, an employee who resides on the premises is not necessarily working all the time they are on the premises. Ordinarily, such employees may engage in private pursuits free from duties during certain times and leave the premises. Any reasonable agreement between the parties as to which hours are hours worked will be acceptable. Best practice to avoid confusion is to get such agreements in writing.
- Is the payment of minimum wage required for people hired to do yard work?
In general, minors or adults who mow lawns and perform other yard work in a neighborhood community generally provide their own equipment, set their own work schedules and are free to hire other individuals. Such persons may be recognized as independent contractors and, if so, would not be covered by the minimum wage requirements. On the other hand, those working for individuals who provide the tools and equipment, set the schedule of work hours, and direct how the work is performed likely qualify as employees who are entitled to minimum wage and overtime for all work over 40 hours per week.