Rules Would Increase Overtime Pay For Live-In Domestic Workers in New York
The federal Fair Labor Standards Act, 29 U.S.C. §§
201-219 (the "FLSA"), and its implementing regulations, 29 C.F.R. §§ 510 et
seq., mandate that most workers in the U.S. be paid at least the federal
minimum wage of $7.25 per hour for all hours worked and overtime compensation at 1½ times the regular rate of pay
for all hours worked in excess of 40 hours in a workweek.
However, the FLSA sets forth exemptions from both minimum
wage and overtime pay for domestic service employees employed "to
provide companionship services for" the young, elderly, or infirm. See
FLSA § 13(a)(15), 29 U.S.C. § 213(a)(15).
So, too, the FLSA carves out an exemption from overtime pay for any employee, employed "in domestic
service in a household," "who resides in that household." FLSA §
13(b)(21), 29 U.S.C. § 213(b)(21).
In December 2011, the U.S. Department of Labor proposed regulations requiring
third-party employers of domestic "companionship" employees, and third-party
employers of live-in domestic employees, to pay the minimum wage and overtime compensation to these employees.
The U.S. Department of Labor's proposed regulations
cover, among other third-party employers, staffing agencies which employ home
The federal regulations under consideration provide that
an individual or member of the family or household using the services of a
domestic "companionship" employee remains entitled to raise the minimum wage
and overtime exemptions under FLSA § 13(a)(15). Proposed 29 C.F.R. §
552.109(a). This is so even if the individual or member of the family or
household is considered a joint employer.
Similarly, the proposed federal rules state that an
individual or member of the family or household using the services of a live-in
domestic employee is still entitled to assert the overtime pay exemption under
FLSA § 13(b)(21). Proposed 29 C.F.R. § 552.109(c). This is the case
even if the individual or member of the family or household is considered a
For 60 days, the U.S. Department of Labor is seeking, from interested
parties, written comments on the proposed rules.
The proposed federal regulations would increase, beyond
the strictures of New York law, the number of hours in a workweek worked by
live-in domestic workers for which such workers are entitled to be paid
overtime. Because the proposed federal rules would give rise to a
difference between federal law and New York law, the law more beneficial to the
worker (that is, federal law) would govern employers in New York.
Specifically, under New York law, most domestic workers
are entitled to be paid overtime compensation at a rate that is 1½ times their
regular, "straight-time" hourly rate of pay for all time in excess of 40 hours
in a payroll week, except that live-in domestic workers are entitled to
receive overtime pay for all time in excess of 44 hours in a
week. See N.Y. Labor Law §§ 2(16), 170; 12 N.Y.C.R.R. § 142-2-2.
Call the Law Offices of David S. Rich, LLC at (212)
209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and
other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other
wage and hour litigation.
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