Live-in and 24-hour caregiver shifts: sleep time and pay

Three kinds of long shift

Federal rules treat sleep time differently depending on how long the caregiver is on duty:

Shifts under 24 hours

A caregiver on a 12-hour overnight shift is working for all 12 hours, even if the client sleeps through and the caregiver dozes. There’s no sleep deduction for shifts under 24 hours.

24-hour shifts

When a caregiver is on duty for 24 hours or more, the agency and the caregiver can agree to exclude:

• a regularly scheduled sleep period of no more than 8 hours, and
• bona fide meal periods, when the caregiver is fully relieved of duty.

That only works if the agency provides adequate sleeping facilities and the caregiver can usually enjoy an uninterrupted night’s sleep. The federal rule allows an express or implied agreement, but a written one is far easier to prove.

Live-in caregivers

The Department of Labor treats a caregiver as living in the home when they reside there permanently or for extended periods, meaning five days a week (120 hours or more) or five consecutive days or nights.

For live-ins, the agreement can exclude sleep time, meal time and other periods when the caregiver is completely free of duty and can use the time for themselves. The employer has to keep a copy of the agreement and a record of the hours actually worked (552.110). If the real hours drift away from what the agreement says, the parties should make a new one.

Under the federal rule in effect since 2015, only a household, not an agency, can claim the live-in overtime exemption. See caregiver overtime rules for agencies for where that stands after the 2025 proposal.

Interruptions

• Every interruption to help the client, whether a bathroom trip at 2 AM or a fall, is paid work time.
• On a 24-hour shift, if the caregiver can’t get at least 5 hours of sleep, the entire sleep period counts as hours worked.
• Record interruptions every night. Without a record, it’s hard to show the sleep period was really off duty.

State rules

• New York applies a “13-hour rule” to home care aides on 24-hour shifts: they can be paid for 13 hours if they get 8 hours for sleep, actually get at least 5 uninterrupted, and get 3 hours for meals. The state’s highest court upheld it in Andryeyeva v. New York Health Care (2019).
• California has separate rules for personal attendants under the Domestic Worker Bill of Rights and for household workers under Wage Order 15. Get advice on which applies to your aides.
• Massachusetts allows sleep time to be excluded from 24-hour shifts for domestic workers only under a prior written agreement.

Your state may be stricter than the federal rule. When the two differ, the rule more generous to the caregiver usually applies.

Agency checklist for long shifts

1. Decide whether the case is hourly, 24-hour or live-in, and schedule it as that type.
2. Put any sleep and meal exclusion in a written agreement signed by the caregiver, and keep it on file.
3. Make sure there are adequate sleeping facilities, such as a real bed, and that nights are usually uninterrupted.
4. Record interruptions and actual sleep every night.
5. Pay the whole sleep period when the caregiver gets less than 5 hours.
6. Count every hour worked toward the week’s overtime, across all of the caregiver’s clients.

Sources

1. 29 CFR 785.21, On duty less than 24 hours (eCFR)
2. 29 CFR 785.22, Duty of 24 hours or more (eCFR)
3. 29 CFR 552.102, Live-in domestic service employees (eCFR)
4. 29 CFR 552.110, Recordkeeping (eCFR)
5. DOL Fact Sheet 79B: Live-in domestic service workers
6. DOL Fact Sheet 79D: Hours worked in domestic service
7. Andryeyeva v. New York Health Care, Inc. (N.Y. 2019)
8. California IWC Wage Order 15
9. M.G.L. c.149 §190, Massachusetts Domestic Workers Bill of Rights