Proposed Changes to FLSA Companionship Exemption Published
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.
RESOURCES:
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