Houston In-Home Caregiver: Overtime Denied
Houston In-Home Caregiver: Overtime Denied and Paid on a 1099
Private Household Employer | Certified Nursing Assistant | Houston, Texas
Families who need round-the-clock care for an aging parent often hire caregivers directly instead of going through a home health agency. A client who cannot be left alone can take long 12-hour shifts from one caregiver, days and overnights both. Households frequently pay those caregivers a flat hourly rate for every hour worked, hand them a paper check each week, and issue a Form 1099 at the end of the year instead of a W-2. A caregiver paid that way can work well past forty hours a week for months or years without ever receiving the overtime pay federal law requires.
Buenker Law recently filed a federal lawsuit in the Southern District of Texas, Houston Division, on behalf of a certified nursing assistant who cared for one elderly client in his private residence. The defendants are the household that employed her and the person who managed the caregiving arrangement. According to the complaint, the caregiver regularly worked five 12-hour shifts a week, including at least two overnight shifts on which she stayed on duty and checked on the client at least every two hours. The lawsuit alleges the defendants paid her the same flat hourly rate for every one of those hours and never paid an overtime premium for a single hour over forty. The complaint also alleges the defendants classified her as an independent contractor and issued her Forms 1099-NEC while setting her schedule, assigning her duties, training and supervising her, supplying the equipment and charting systems she used, and deciding what she was paid.
Federal law generally requires overtime for in-home caregivers. As a general rule, an employer may not work an employee in domestic service in a household more than forty hours in a workweek without paying overtime, and that includes home health aides, personal care aides, and nurses.
The complaint also describes unpaid work outside the scheduled shifts. It alleges the caregiver was expected to arrive fifteen minutes early for a briefing on the client's condition and to stay fifteen minutes after her shift to brief the next caregiver, and that she often finished her required shift documentation after clocking out, sometimes in her car in the parking lot. The lawsuit further alleges that after the household put her in charge of scheduling the other caregivers, she fielded calls and texts about staffing and the client's care on her days off and built schedules and forms at home, all without pay. Because her scheduled hours already exceeded forty in the workweek, those additional hours are alleged to be unpaid overtime.
The lawsuit also asserts a retaliation claim. According to the complaint, the caregiver complained that she was owed overtime and had been misclassified, then filed a wage claim with the Texas Workforce Commission and a Form SS-8 with the IRS. The complaint alleges the IRS determined she was an employee, which is a determination about her status for federal tax purposes rather than a ruling on her wage claim. The complaint further alleges that the defendants responded by taking away one of her shifts, then a second, cutting her out of the group text messages and care meetings she needed to do her job, and firing her. Federal law makes it illegal to punish a worker for complaining about unpaid wages or for filing a wage claim. A worker who proves retaliation may recover lost wages, an equal amount in liquidated damages, and compensation for emotional distress, depending on what the court finds appropriate. This case is pending in federal court in Houston.
Workers in similar situations may have legal rights under the FLSA. Because the complaint alleges that the employer acted intentionally and knowingly in violation of federal law, affected workers may be entitled to recover three years of back wages. Time limits apply.
