The short answer
As of September 29, 2026
If your agency employs the caregiver, the federal rule on the books says you owe at least the federal minimum wage and overtime at 1.5 times the regular rate for every hour over 40 in the workweek, counting all of their clients together.
The Department of Labor proposed undoing that in July 2025 and has suspended its own enforcement while it finishes the rule. No final rule has been published yet. Private lawsuits and state overtime laws still apply, so most agencies should keep paying overtime until the rules actually change.
Who the federal rule covers
The Fair Labor Standards Act has two exemptions that matter for home care: one for “companionship services” (minimum wage and overtime) and one for domestic workers who live in the home (overtime only). Before 2015, agencies could use both.
The Department of Labor’s 2013 Home Care Rule, effective January 1, 2015, changed that. Under 29 CFR 552.109, third-party employers, meaning agencies, can’t claim either exemption, even when the household is a joint employer. The family employing a caregiver directly still can.
So for an agency, a caregiver who does companionship, personal care or homemaking is owed minimum wage and overtime like any other hourly employee.
Where the rule stands in 2026
| Date | What happened |
|---|---|
| Oct 1, 2013 | Home Care Rule published, removing the exemptions for third-party employers. |
| Jan 1, 2015 | Rule takes effect. After a court challenge, the D.C. Circuit upheld it in August 2015. |
| Jul 2, 2025 | DOL proposes returning to the 1975 regulations, which would let agencies claim both exemptions again. |
| Jul 25, 2025 | Field Assistance Bulletin 2025-4: DOL suspends enforcement of the 2013 rule’s provisions until a final rule takes effect. |
| Apr 1, 2026 | The Sixth Circuit, in DOL v. Americare Healthcare Services, upholds 552.109 in an overtime case against a home care agency. |
| Aug 14, 2026 | DOL’s regulatory agenda lists the final rule stage with a target of November 2026. |
The enforcement bulletin says plainly that it doesn’t change any statutory or regulatory requirement. The regulation is still in the Code of Federal Regulations, so a caregiver can still bring a private overtime claim, and state agencies can still enforce state law.
Counting the 40 hours
- Use a fixed workweek. A workweek is any fixed, recurring 168 hours, for example Sunday 12:00 AM to Saturday 11:59 PM. It doesn’t have to match your pay period (778.105).
- Each week stands alone. You can’t average a 50-hour week with a 30-hour week (778.104).
- Add up every client. The Department of Labor counts all the work time the agency arranges. Its own example: 20 hours with one consumer and 25 with another is 5 hours of overtime.
- Count travel between clients. Driving from one client’s home to the next during the workday is hours worked (785.38). The commute to the first client and home from the last is not.
- Sleep and meal time only come off in specific cases. See live-in and 24-hour shifts.
The regular rate
Overtime is 1.5 times the caregiver’s regular rate, not their base rate. The regular rate is total pay for the workweek, including most shift differentials and non-discretionary bonuses, divided by total hours worked (778.109). When a caregiver earns different rates at different clients, the regular rate is generally the weighted average across all of them (778.115).
A worked example
Maria works for your agency at $18 an hour for three clients in one workweek, plus 90 minutes of driving between them:
| Work | Hours |
|---|---|
| Alma, Mon to Fri, 9 AM to 1 PM | 20 |
| Margaret, Mon, Wed, Fri, 2 PM to 7 PM | 15 |
| Harold, Saturday | 8 |
| Travel between clients | 1.5 |
| Total | 44.5 |
No single client’s timesheet reaches 40 hours, but Maria worked 44.5. That’s 40 regular hours at $18 ($720) and 4.5 overtime hours at $27 ($121.50), for $841.50 before any other pay.
State rules that go further
Even if the federal exemptions come back for agencies, some states have their own rules. A few examples:
- California. The Domestic Worker Bill of Rights gives personal attendants overtime after 9 hours in a workday or 45 in a workweek (Labor Code 1454), and its definition of employer includes third-party employers such as agencies (1451). IHSS providers are covered by a different program.
- New York. State overtime rules require overtime even for employees exempt under the FLSA, at 1.5 times the state minimum wage, after 40 hours, or 44 for residential employees (12 NYCRR 142-2.2).
- Oregon. The domestic worker overtime law (ORS 653.547) excludes employees of licensed in-home care agencies, so agency aides fall back on the general rules.
Check your state labor department for the rule that applies to your caregivers.
What agencies should do now
- Keep paying overtime past 40 hours across all clients unless an employment attorney tells you otherwise for your state.
- Pick a fixed workweek and use it for every caregiver.
- Track travel between clients, and keep written agreements for any sleep or meal time you exclude.
- Keep accurate records of hours worked each day and week.
- Watch for the final rule. If it’s published, it will have an effective date, and state law may still apply after it.
AideBook adds up each caregiver’s hours across every client and splits out overtime past 40 on the timesheet automatically.
Sources
- 29 CFR 552.109, Third party employment (eCFR)
- DOL Fact Sheet: Application of the FLSA to Domestic Service
- DOL: Home care / direct care workers and FAQ
- Proposed rule, 90 FR 28976 (July 2, 2025)
- Field Assistance Bulletin 2025-4 (July 25, 2025)
- DOL v. Americare Healthcare Services, 6th Cir. No. 25-3128 (Apr. 1, 2026)
- Spring 2026 regulatory agenda, Department of Labor
- 29 CFR 778.104, 778.105, 778.109 and 778.115 (eCFR)
- 29 CFR 785.38, Travel from job site to job site (eCFR)
- DOL Fact Sheet 79D: Hours worked in domestic service
- California Labor Code 1451 and 1454
- 12 NYCRR 142-2.2 (New York overtime)
- ORS 653.547 (Oregon domestic workers)