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December 23, 2011

U.S. Department of Labor Proposes Rule to Amend Regulations Concerning In-Home Care Industry under Fair Labor Standards Act

On December 15, 2011, the U.S. Department of Labor (“DOL”) proposed a rule that would significantly revise the regulations concerning companionship and live-in domestic employees under the Fair Labor Standards Act (“FLSA”).  Among other changes, the Proposed Rule:  (1) clarifies the types of tasks that a companion may perform in order to be exempt from the minimum wage and overtime requirements of the FLSA; (2) limits both the companionship and live-in domestic service exemptions to companions and live-in domestic workers employed by the family or household receiving the services; and (3) denies the exemptions to those employed by third party employers, such as in-home care staffing agencies (even if the employee is jointly employed by the third party and the family or household).  The Proposed Rule would effectively overrule the Supreme Court’s holding in Long Island Care at Home v. Coke, 551 U.S. 158 (2007), that applied the exemption to employees employed by third parties..  The full text of the DOL’s Notice of Proposed Rulemaking is available at http://www.dol.gov/whd/flsa/CompanionshipNPRM.pdf.

While “domestic service” employees are generally covered under the FLSA, Section 13(a)(5) of the FLSA provides an exemption from both the minimum wage and overtime pay requirements for babysitters and companions for the aged and infirm (the “companionship exemption”); and Section 13(b)(21) exempts live-in domestic workers from the overtime requirement (the “live-in domestic service exemption”).  Both of these exemptions are affected by the Proposed Rule.  The more salient points of the Proposed Rule are:

  • The Proposed Rule redefines “domestic service employment” to eliminate the requirement that the services be performed in the employer’s home.  It also updates the illustrative list of the types of domestic service employees covered by the regulation to include home health aides, personal care aides, and nannies.
  • The Proposed Rule limits the definition of “companionship services” to those tasks which are directly related to the provision of fellowship and protection for an aged or infirm person.  The Proposed Rule provides an illustrative list of incidental services that an exempt companion may perform, such as occasional dressing, grooming, driving to appointments, and bathing, so long as this incidental work is performed attendant to and in conjunction with the “core companionship functions” and does not exceed 20% of the hours worked during a work week.  The exemption would not apply to those individuals for whom companionship services is not a vocation.  
  • The Proposed Rule further narrows the definition of “companionship services” to exclude general household work, such as vacuuming, washing windows, and dusting.  As such duties do not constitute fellowship and protection of the aged or infirm, and are not incidental to the provision of fellowship and protection services, any performance of general household work would result in the loss of the exemption for the week, even if it consumes less than 20% of the hours worked in the week.
  • The Proposed Rule clarifies that “companionship services” do not include the performance of medically-related tasks for which specialized training is typically a pre-requisite.
  • The Proposed Rule limits the companionship and live-in domestic service exemptions to employees employed by the individual, family or household using the services only. Thus, third party employers such as home health care agencies could claim neither the companionship nor live-in domestic service exemption, even if the individual, family or household could claim the exemption.
  • The Proposed Rule revises the recordkeeping requirements for live-in domestic workers to require employers to maintain an accurate record of the actual hours worked by such workers.  It would no longer be sufficient to have a work agreement between the parties.        

The Notice of Proposed Rulemaking is expected to be published on December 27, 2011. The public has 60 days (i.e., until February 27, 2012) to submit comments to the DOL about the Proposed Rule.  At the end of this period, the DOL will evaluate the comments, consider revisions to the Proposed Rule in response to those comments, and then submit a proposed final regulation.  If the Proposed Rule is adopted, all third party health care and others employing home care workers will be required not only to pay the minimum wage to all such employees, but also to pay overtime compensation to these employees (at the rate of at least one and one-half times their regular rate of pay) for all hours in excess of 40 hours in a given week.

If you should have any questions regarding the Proposed Rule, please contact us.