The US DOL has proposed a series of rules changes that will result in a substantial number of elder care and home care workers being covered by the Fair Labor Standards Acts' (FLSA) minimum wage and overtime protections. This continues a trend of increased regulation and enforcement in the area of domestic service employees, with an increasing number of household workers being subject to Wage and Hour protections and enforcement. The proposal more strictly limits and defines the services of a "companion," and states that household employers MUST maintain accurate and contemporaneous time tracking records and pay household staff for every hour on duty. It also states that employees of third party employers such as staffing agencies are not exempt from minimum wage and overtime protections. Public comments will be solicited when the proposal is published in the Federal Register.
CURRENT DEFINITIONS: "Companionship services" as defined by the US Department of Labor in 1974 refers to "services for the care, fellowship, and protection of persons who because of advanced age or physical or mental infirmity cannot care for themselves. Such services include household work for aged or infirm persons including meal preparation, bed making, clothes washing and other similar personal services. General household work is also included, as long as it does not exceed 20 percent of the total weekly hours worked by the companion."
When the job functions performed adhere to this definition, the companionship exemption applies to the worker and his/her protections under the FLSA whether employed directly by the family or individual, or employed by an independent for profit or not for profit home health agency.
PROPOSED DEFINITIONS: The US DOL website states "The proposed definition of companionship services is limited to those duties that are directly related to the provision of fellowship and protection for a person who, because of advanced age or infirmity, is unable to care for himself or herself. It also allows for the performance of personal care services when those services are performed incidental to the core companionship functions and so long as they do not exceed 20 percent of the employee’s time during a work week."
Personal care services are now to be limited to no more than 20% of the employee's work time, and provision of incidental household services (vacuuming and dusting for example) is specifically prohibited under the proposed defintions. According to the DOL "The performance of duties that are not for fellowship and protection of the aged or infirm person, or incidental to the provision of fellowship and protection, are not “companionship duties,” and therefore, any performance of general household work would result in the loss of the exemption for the week."
In addition to the more limited definition of job functions classified as "companionship services", the proposed regulations specifically limit the exemption to individuals employed directly by the individual or family. Third party employers must adhere to the FLSA for all of their direct pay staff providing home care and companionship services.
OVERNIGHT CARE: According to the proposal, "an employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep. All the time is counted as hours worked. However, if the employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude bona fide regularly scheduled sleeping periods of not more than 8 hours from hours worked. If the sleep period is interrupted to the point where the employee does not have the opportunity for at least five hours of sleep, the entire period must be counted as work time. Where there is no express or implied agreement with respect to sleep time, all hours must be counted as work time." (Emphasis added)
Lastly, live in domestics of ANY job description continue to be exempt from overtime when directly employed by the family. The proposed rules "requires employers to maintain an accurate record of the actual hours worked by such workers. It will no longer be sufficient to have a work agreement between the parties." However, live in domestics employed by any third party employer are covered by the overtime provisions of the FLSA.
Notice of Proposed Rules Making (12/16/2011)
Blog July 5, 2011 Legislative Repeal of Companionship Exemption Considered
Blog October 24, 2011 Companionship Exemption Faces Scrutiny
The Fair Labor Standards Act (FLSA) exempts companions for the elderly and infirm from the protections of minimum wage and overtime pay. First established in 1974, workers who are considered companions must provide care and companionship for the individual in their care, and no more than 20% of their working hours can be spent in general housekeeping activities.
Demographically, the number of elderly who are "aging in place" and receive companionship care from non-related adults has soared since the "companionship exemption" was first defined. There have been several attempts at overturning this FLSA exemption, both in the courts and legislatively. Bills were introduced in the current Congress to provide a legislative remedy - these are currently stalled and not expected to make progress this year.
Frustrated by the lack of legislative action and under significant pressure from labor unions, the Department of Labor under the leadership of Secretary Hilda Solis announced in July 2011 that it would begin a review of the definition of which caregivers qualify for the exemption. The DOL is widely expected to significantly narrow the definition to only include very occasional workers. The agenda related to the FLSA Companionship Exemption review states "DOL intends to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years."
Recent remarks from Secretary Solis provides even stronger evidence of the direction the DOL will take with review of the "companionship care" definitions. In an address October 6 at the Rosalynn Carter Institute Family Caregivers Summit, Secretary Solis noted:
I'm also taking a hard look at the "companionship" exemption that has prevented some home health care aids from earning minimum wage and overtime pay under the Fair Labor Standards Act. We know the duties these professionals perform have grown more demanding over time, requiring greater autonomy, responsibility and skill. And many are being employed not just by families but also by staffing agencies in the business of providing these services. Domestic care workers are now providing these services in both home and community-based settings. Often, they're serving people with physical and developmental challenges, as well as people with chronic and terminal conditions. It's demanding work. So we'll have more to say about this rule once it goes through the regulatory process.
Do I need to pay my home health aide or housekeeper minimum wage?
The Fair Labor Standards Act (FLSA) as amended in 1974 extended minimum wage and overtime protections to most household workers.
The FLSA specifically exempted "companionship care" for individuals who due to advanced age or infirmity required care and companionship to remain in their private home. The Department of Labor defined "companionship care" to incude all workers whose job responsibilities restricted housekeeping duties to less than 20% of their activities.
The US Department of Labor is currently reviewing its definition of "companionship care," and is widely expected to significantly narrow the definition to only include very occasional workers. It is expected that minimum wage and overtime protections of the FLSA will be extended to all home care workers who are employed for more than 5 hours per week. The regulatory change is strongly supported by unions and organizations advocating for the fair compensation and treatment of household workers.
The DOL conducted a 'listening' session yesterday, July 25, and will have a final one hour session Wednesday July 27. At issue is how to balance the needs of the elderly receiving this type of care with the workers' desire for minimum wage and overtime protections. 24/7 care arrangements are the norm in this industry, with 2 or 3 workers commonly covering the needs of an individual.
HomeWork Solutions is following this issue carefully, as our clients employ a significant number of in home elder care workers. Please subscribe to our blog to receive information updates as they become available.
The Fair Labor Standards Act (FLSA), as amended in 1974, offers minimum wage and overtime protections to most household, or domestic, workers. What this means is that nannies, housekeepers, maids and other household employees are all protected under Federal minimum wage provisions, and that come and go (live out) domestics are entitled to the overtime differential (150% of hourly wage) for hours worked over 40 hours in a 7 day work week. A notable exception to this 1974 amendment was live in "companionship care" - companionship care for elderly and disabled individuals to allow them to continue to reside in their home, rather than moving to a residential care setting. This specific class of domestic workers were exempted from both the minimum wage and overtime protections of the FLSA. It is important to note that state legislation in CA, MD, NJ and NY all extend minimum wage and/or overtime protections to domestic workers in their state.
The US Supreme Court ruled in in Long Island Care At Home, Ltd., et al. v. Evelyn Coke (7/11/2007) that this companionship exemption was in fact valid as the FLSA was written, and found that the issue would need to be addressed by the Congress, not through the courts.
Sen. Bob Casey (D-Pa.) introduced the Direct Care Job Quality Improvement Act in the Senate (S. 1273) with Senate Health, Education, Labor, and Pensions Committee Chairman Tom Harkin (D-Iowa) and Sen. Bernie Sanders (I-Vt.) . Identical legislation (H.R. 2341)was introduced in the House by Rep. Linda Sanchez (D-Calif.). Both bills were introduced June 24, 2011
The proposed legislation would ensure that all home care workers, including those providing companionship care, receive the federal minimum wage and overtime protections of the Fair Labor Standards Act.
The legislation would amend the Fair Labor Standards Act with regard to the companionship exemption and would improve the systems for the collection and reporting of data relating to the domestic service workforce. The bill would not cover baby sitters and employees working on a "casual basis in domestic service employment" for less than five hours a week.
HomeWork Solutions will report here on any updates as available.