Home health care agencies are required to employ their visiting nurses, as opposed to retaining them merely as independent contractors. The employee status is critical when considering whether or not a home health care agency may be obligated to compensate their nurses for overtime. Under Illinois law, when a non-salaried employee works more than 40 hours a week, the employer is obligated to compensate such employee for any time beyond 40 hours at time and a half.

A home health care agency needs to consider this potential liability in connection with how they treat their employees. First of all, the home health care agency should adopt policies within their employee manual that addresses the length of time that a home visit is expected to take. In addition, the employee manual should also require any employee wishing to work more than 40 hours a week to first receive written authorization from their supervisor. Our office also recommends that home health care agencies be careful as to the number of visits that they assign a particular nurse for any given week. Using these simple guidelines, a home health care agency could save huge amounts of money in the future.

In the event that the Department of Labor is called in, they will invariably conduct a review of all the employment records of the nurses for the particular home health agency. In addition, they will naturally determine the number of visits that such nurse makes as well as factor the time of travel between various visits. In addition to the unpaid overtime at time and a half, fines and/or interest would also be charged to the home health care agency. More troubling is that the Department of Labor will seek to collect this not just for any complaining employee, but also for all employees of the agency in question.