Guest Post: Payment of Home Health Aides

Today’s guest blogger is employment lawyer Michael Mason. Attorney Mason practices at Bennett and Belfort in Cambridge, Massachusetts; and has litigated and mediated numerous employment law cases representing both employers and employees. Here are his thoughts about a problem which comes up regularly:  the payment of home health aides.

A recent New York Times blog post  described the push by home health care aides to change federal wage regulations.  Currently, federal law does not guarantee home health aides any minimum wage, and it does not require that home health aides be paid overtime.  As the population ages and the demand for home health care skyrockets, many home health care workers find themselves working long hours for little pay.  This is in contrast to workers performing the same job at nursing homes, who are guaranteed a minimum wage and overtime pay under federal law. Thus, industry groups and even President Obama have spoken out about the need to provide greater protections for home health aides.

A Massachusetts resident who hires a home health care aide in the midst of this recent public discourse may understandably conclude that their health care aide does not need to be paid the minimum wage or overtime pay for any time worked in excess of 40 hours in a week.  However, it’s critical for anyone hiring a home health care aide in Massachusetts to know that under state law, these workers are not exempt from minimum wage or overtime requirements.

Unlike federal law, Massachusetts law does not make home health aides exempt from minimum wage or overtime requirements, and when a conflict exists between state and federal wage laws, the scheme that provides greater protection for the employee is the one that applies.  Regardless of their exemption under federal law, home health aides in Massachusetts must be paid at least the minimum wage (currently $8.00 per hour) and must be paid one and one-half times their usual rate for all hours worked in excess of 40 hours in a given week.

In light of the severe civil and criminal penalties that may be levied for violating wage and hour laws, it is highly advisable that anyone hiring or employing a home health care worker seek a qualified employment law attorney to advise them on compliance with the law.

Looking to Claim Florida Residency? Not So Fast.

Yes, it’s August. But soon enough your thoughts may turn to packing up the car and heading south to enjoy a warmer winter. If you are heading to Florida, don’t just assume that you can escape Massachusetts taxes just because you put a Florida plate on your car.

One estate and financial planning issue that comes up for “snowbirds” who split their time between Massachusetts and Florida is just which state is the snowbird’s legal “home,” or “domicile.”  The Department of Revenue’s (DOR) general rule is that the snowbird must live in Florida for at least 183 days a year and have largely severed social, business and other ties to Massachusetts to be considered a Florida domiciliary. If you try to claim that you are a Florida resident and file a non-resident income tax return,  The burden will be on the snowbird to prove to DOR that you are no longer domiciled in the Commonwealth for the purpose of taxation of Massachusetts-sourced income.

To establish nonresidency, the snowbird needs to show such things as: the degree to which has the snowbird severed social and familial ties with the Commonwealth, the relocation of any business activity, changes in the registration of the car and voter registration, whether the snowbird is permanently employed in Florida, whether Massachusetts bank accounts have closed, and the degree of involvement in the new Florida community.  If the snowbird cannot establish the facts of nonresidency to the satisfaction of DOR, then all “Massachusetts-source income” (including ordinary income and capital gains) will continue to be subject to income and estate taxation and the snowbird will continue to be required to file the Massachusetts resident income tax return. Failure to file the correct tax return may subject the snowbird to fees and penalties.

Similarly, the estates of Massachusetts residents are subject to graduated estate taxation if they exceed $1 million. If the personal representative of a deceased snowbird with a sizable estate incorrectly tries to claim that the decedent was a Florida resident at the time of death in the hope of avoiding estate and fiduciary income taxes, the estate could face significant additional costs, and the heirs of the estate might try to hold the personal representative personally liable for the reduced size of the inheritance.

Thus, it’s a good idea for seniors who think they might want to call themselves Florida residents to avoid paying taxes to speak first with a Massachusetts CPA or tax attorney to see if they have a valid argument that they are no longer domiciled in Massachusetts. The money spent on such a consultation will be far less than the potential cost of a DOR audit.