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DOL Proposed Rule Would Revise Companionship and Live-in Worker FLSA Regulations
Practical Law Legal Update 7-516-9052 (Approx. 4 pages)
DOL Proposed Rule Would Revise Companionship and Live-in Worker FLSA Regulations
by PLC Labor & Employment
| Published on 16 Dec 2011 • USA (National/Federal) |
The DOL's Wage and Hour Division has announced proposed rules aimed at expanding minimum wage and overtime protections for domestic caregivers under the Fair Labor Standards Act (FLSA). The new rules propose to limit the types of work exempt from FLSA wage requirements, increase recordkeeping requirements for certain domestic workers and clarify that companionship exemptions are limited to individuals employed by the family or household using the services.
On December 15, 2011, the DOL's Wage and Hour Division published a notice of proposed rulemaking to revise companionship and live-in worker regulations codified in Sections 13(a)(15) and 13(b)(21) of the Fair Labor Standards Act (FLSA). The proposed changes aim to expand minimum wage and overtime protections for domestic caregivers by limiting exemptions from FLSA wage and hour requirements.
The current regulations originated in 1974, when Congress exempted certain domestic workers, including live-in domestic workers and those providing companionship services for the aged and infirm, from overtime and minimum wage requirements extended to domestic service employees. The proposed rules seek to limit application of the exemption following the Supreme Court's decision in Long Island Care at Home, Ltd. v. Coke, where the Court upheld the exemption's historic application to individuals employed by third-party agencies who provide home healthcare (551 U.S. 158 (2007)).
The proposed rules would:
- Alter the definition of "domestic service employment" by eliminating language requiring domestic service to be performed in the employer's home and adding new occupations, including home health aides and personal care aides.
- Clarify that "companionship services" subject to the exemption do not include medical care typically provided by personnel with specialized training.
- Limit the types of activities that may be considered incidental to the provision of companionship services by excluding certain tasks, such as vacuuming and window washing.
- Clarify that companionship exemptions are limited to companions employed by the family or household using the services, and do not apply to third-party employers even where an employee is employed jointly by the third party, and the family or household.
- Amend recordkeeping requirements to require employers to maintain hourly work records for live-in domestic employees.
Agencies that are in the business of providing home healthcare services should expect steep increases in labor costs if these rules are approved as proposed. The proposed rules would make home healthcare workers, who were not previously covered by the FLSA, entitled to, among other things, the federal minimum wage and overtime compensation.
Update: This proposed rule filing was published in the Federal Register on December 27, 2011. Comments are due by February 27, 2012.