Calculating Overtime Hours For Domestic Staff

A plaintiff sued his former employer, HT Airsystems of Florida, on allegations that he routinely worked 50 to 60 hours per week but did not receive overtime pay. He also claimed the organization failed to keep and maintain accurate records of his work hours.

The plaintiff worked as an air conditioning service technician for the organization from April 16, 2018 until he was terminated on April 21, 2020.

In October 2019, the employer allegedly started designating all new hires for the service technician position as non-exempt. However, service technicians who were existing employees, including the plaintiff, remained designated as exempt. The plaintiff alleges he was a non-exempt employee and was misclassified.

According to the  complaint, in December 2019, the plaintiff emailed his manager to express his concern that he was not being paid overtime. On several other occasions, he asked about overtime owed to him.

The following month, human resources managers, the organization's general manager and president, and their immediate supervisor allegedly met with the wrongly-designated service technicians, including the plaintiff. At the meeting, the employees were purportedly told they would be paid on an hourly basis starting on May 1, 2020. During the meeting, the plaintiff claims to have complained about not receiving overtime pay, and the managers told him they would investigate the issue and get back to him.

On April 1, 2020, the plaintiff emailed his managers and supervisors to inquire about the new pay system. He also complained about having to work in the field without personal protective equipment (PPE).

According to the lawsuit, approximately three weeks later, the employer terminated the plaintiff without giving a reason for the termination. The plaintiff alleged that he was retaliated against for complaining about overtime pay and not receiving PPE during the COVID-19 pandemic.

The lawsuit alleged violations of the Fair Labor Standards Act (FLSA) and Florida's Whistleblower Act (FWA). Complaining about pay is a protected activity under the FLSA. In addition, the Occupational Safety and Health Administration (OSHA) requires the use of PPE when necessary due to job hazards.

The plaintiff sought damages including unpaid overtime, back pay, front pay, liquidated damages, declaratory relief, attorneys' fees, and punitive damages.  The case settled in December of 2020. Macke v. HT Airsystems of Florida, LLC. (Dist.Ct.M.D.FL) (Case No. 6:20-cv-00787)(May 06, 2020).

Commentary and Checklist

The federal Fair Labor Standards Act (FLSA) requires family employers to pay staff for all hours worked, which includes paying all non-exempt staff time-and-a-half for hours worked over 40 per week. State wage and hour laws may have stricter requirements. Family employers must pay staff according the law most advantageous for the staff member.

For more information on calculating hours worked for domestic staff, see the DOL’s Fact Sheet #79D. Many domestic staff are not exempt from overtime requirements. Generally, only babysitters on a casual basis; companions for the elderly or those with an illness, injury or disability; and live-in domestic staff are exempt from overtime pay requirements.

When calculating work hours, family employers must include any time the staff member is on duty, including times they are “engaged to wait.” Only when they are completely relieved of all duties should you consider live-in domestic staff as “off the clock.”

If you interrupt a staff member’s normal sleep hours, that time must be paid. The entire night must be paid if the staffer cannot get at least five hours of sleep.

Here are some additional tips family employers should follow when determining overtime exemptions:

·      Revisit and update your wage and overtime policy so that it is in compliance with the Fair Labor Standards Act and your state wage and hour law.

·      Remember, government regulators begin reviewing a wage and hour claim, assuming the worker is not exempt from overtime.

·      Consider an independent audit of your staff classifications. Review them with your attorney.

·      Closely examine the salary and job duties of staff to determine status under overtime laws. Do not rely solely on job descriptions or job titles.

·      Provide training to your staff managers so they are aware of which staff are eligible for overtime and what those staff are entitled to under the law.

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