The Georgia Minimum Wage Law applies to in-home care workers according to a new ruling that was recently handed down by the Georgia Supreme Court. The putative class action was brought by a group of in-home care workers against their former employer, a large in-home care company and its subsidiary. The former employees were required to drive between patient’s homes throughout the course of the workday, but they were prohibited from reporting the time, and consequently they were never paid an hourly rate for it.
The Georgia Minimum Wage Law (“GMWL”) requires all employers to pay all “covered” employees a minimum wage of not less than $5.15 per hour unless an exception applies. One exception is set forth in OCGA § 34-4-3, which states that the GMWL does not apply to employers whose employees are subject to the minimum wage provisions of an act of Congress if that act provides a minimum wage greater than $5.15.
The employer contended that the exception to the GMWL applied because the in-home care workers were “covered” by the Fair Labor Standards Act, and the FLSA provided a greater minimum wage.
The court determined that although the employers were subject to the FLSA, they were not covered by it. The FLSA sets forth an exemption in 29 U.S.C. § 213 (a)(15) for “companionship services,” which exempts those who provide companionship services to individuals who cannot care for themselves. The in-home care workers job duties fell within that provision, and as such, they were not covered by the FLSA minimum wage protections as required by the GMWL.
Although the employers noted that the employees were still covered by other portions of the FLSA in spite of the minimum wage exemption, the court dismissed this argument given the GMWL’s focus on coverage specifically by a minimum wage provision of a federal law. The court further rejected the employer’s argument that the court’s application of the GMWL in this manner would produce absurd results because it would apply to other types of Georgia employees, including executive, administrative, and professional employees. The court reasoned that although the GMWL could apply to those employees, it likely would not affect them because an FLSA exempt employee would have to work 80 hours per week for 52 weeks and earn less than $21,424 per year to trigger the law.
Finally, the court determined that the GMWL’s “domestic employees” exemption did not apply to the in-home care workers given that the exception requires the domestic services to be performed in the home of the employer. The in-home care employees, however, worked in the homes of the employer’s clients.
In-Home Care Companies: Take Note
In light of the decision, companies that provide in-home care services should immediately evaluate compliance with the GMWL. All in-home care employees must be paid at least $5.15 per hour, and in determining whether this threshold is met, the employer should factor in travel time between clients’ homes. Further, employers should require employees to account for travel to each client’s homes in their time sheets to ensure that they are properly compensated for that time so as to avoid any exposure to future liability under the GMWL.
Contributor: Katherine P. Sandberg, Associate | Weintraub Tobin