Can a Hired Caregiver Sue Your Family?

When hiring a caregiver to meet your loved one’s needs, there are factors you should be aware of to minimize your risk of being sued by a home care aide or caregiver.

1. They weren’t paid overtime.

Minimum wage requirements count toward the first 40 hours a week, but beyond that, you may be expected to pay time and a half, according to attorney Nance L. Schick. Even if the total for the week stays under 40 hours, “some states might also require overtime pay after eight hours in one day.”

If your hired caregiver is living on-site and regularly helping with your loved one beyond an eight-hour shift, your payments need to account for your state’s overtime pay laws.

2. They weren’t paid the legal wage.

According to Schick, this is a common issue. “Most [families] pay what they think are ‘good salaries’ and provide food and lodging for their caregivers, but they must ensure the value of the food, lodging, wages, and other perquisites add up to minimum wage,” she says.

3. They suffered harassment on the job.

State and federal laws protect aides from harassment on the job.^[01] If a hired caregiver suffers harassment at your hands (or those of your loved one), you could end up in court.

4. They suffered an injury on the job.

When you hire a home care aide directly rather than working through an agency, you have the same obligations as any business owner has to their employees. That includes worker’s compensation if your hired caregiver gets hurt while caring for your loved one.

If an aide working for you in your home is injured, files a lawsuit, and the court rules in their favor, you could be ordered to pay considerable damages.^[02] In New York, where Schick practices, families can be required to pay the costs of medical expenses and lost earnings, as well as additional penalties if they don’t have the required insurance.

“One year of penalties can be as high as $73,000, and many of these caregivers are employed for several years before they file claims,” Schick says.

Let our care assessment guide you

Being sued by a hired caregiver is avoidable. You can take a few smart steps to protect yourself and your family:

1. Meet with an attorney.

Find an attorney that has worked with domestic employment cases before. They can advise on the right steps to take to make sure the agreement between you and your employee is legal.

2. Meet with an accountant.

Employing a domestic worker also comes with certain tax responsibilities. An accountant can ensure your payment and tax withholding processes are accurate and legal.

3. Buy disability and workers’ compensation insurance.

“Most homeowner and renter’s insurance policies exempt full-time domestic workers from coverage; they need separate worker’s compensation coverage,” Schick says. Not having the required insurance coverage is illegal. It not only means that you won’t be protected in the case of a lawsuit, but it could also mean you face huge penalties for the time a caregiver was employed that you didn’t have insurance.

4. Keep records of any issues that arise.

If you experience issues with your hired caregiver, document them as they arise. If things get contentious and you end up having to let them go, having a date and note of every incident that occurred puts you in a stronger position to defend yourself.

5. Track the time your caregiver works.

Keep track of how many hours your caregiver works and establish a system for tracking their time.

6. Pay by the hour.

“I would not recommend offering a salary to prospective caregivers,” says attorney Joseph D. Kamenshchik.

If you pay a salary, you may be tempted not to track the specific hours worked. “If the weekly salary, when broken down by hours worked, doesn’t fully satisfy minimum wage and/or overtime obligations, legal trouble is right around the corner,” Kamenshchik explains.

If you’re found to have violated wage laws, you could be ordered to pay backpay, additional damages, lawyer’s fees, and interest.^[03]

Talk with a Senior Living Advisor

7. Work through an agency.

When a caregiver is an agency’s employee rather than yours, you reduce your liability significantly. Schick recommends that families request copies of the certificates of insurance for disability and workers’ compensation from any agencies they work with.

Cade Parian, a personal injury attorney, warns that even with an agency, an “in-home caregiver can sue for additional damages, known as a third-party claim.” Your family could still end up being named in a suit if the caregiver felt they could prove negligence on your family’s part.

That said, going through an agency is still a safer choice than hiring a caregiver on your own.

Many families hire in-home caregivers without ever dealing with a lawsuit. The prospect of things going bad shouldn’t scare you away from investing in the care your loved one needs. As you and your family explore options for hiring a caregiver, consider getting in touch with one of A Place for Mom’s Senior Living Advisors. They can offer advice on every stage of your senior living search, all at no cost to you.

The information contained in this article is for informational purposes only and is not intended to constitute legal advice or create an attorney-client relationship between A Place for Mom and the reader. Always seek the advice of your attorney with respect to any particular legal matter, and do not act or refrain from acting on the basis of anything you have read on this site.