Labor Department Proposes to Eliminate Exemptions for In-Home Companionship Workers Not Directly Employed by a Family

Labor Department Proposes to Eliminate Exemptions for In-Home Companionship Workers Not Directly Employed by a Family

The U.S. Department of Labor recently announced that it was filing a notice of proposed rule-making regarding its regulations pertaining to the exemption for companionship services and live-in domestic services.

Section 13(a)(15) of the Fair Labor Standards Act (FLSA) exempts from the minimum wage and overtime provisions domestic service employees who are employed "to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)." Section 13(b)(21) of the law also exempts from the overtime provision any employee employed "in domestic service in a household and who resides in such household."

These FLSA exemptions, enacted in 1974, were later complimented by Labor Department-promulgated regulations in 1975.  Those regulations have not been amended or changed since 1975.  Since that time, the Department notes that there have been "significant changes in the home health care industry" and "workers who today provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were promulgated." It also noted that the "number of workers providing these services has also greatly increased, and a significant number of these workers are being excluded from the minimum wage and overtime protections of the FLSA under the companionship services exemption." Therefore, the Labor Department decided to reduce the scope of the exemption by amending its regulations to revise the definitions of "domestic service employment" and "companionship services." The Department also proposed to clarify the type of activities and duties that may be considered "incidental" to the provision of companionship services.

Additionally, the Department proposed to amend the record-keeping requirements for live-in domestic workers. Finally, the Department proposed to amend the regulation pertaining to employment by a third party of companions and live-in domestic workers.

These changes would continue to allow the individual, family, or household directly employing the worker's services to apply the companionship and live-in exemptions but would deny all third party employers of such workers the use of the exemptions.

Comments on the proposed changes to the regulations must be received by the Labor Department on or before February 27, 2012.

Read about additional Labor and Employment Law Developments by Edwin S. Hopson in the Wyatt Employment Law Report.

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