Upcoming changes to the FLSA home care exemption

Currently, the FLSA exempts certain home care workers from the overtime and minimum wage requirements set forth in the law. The FLSA exemptions relating to home care workers are: 1) domestic service employees who provide “companionship services”; and 2) “live-in” domestic service employees. Workers in these two types of jobs are currently not being paid overtime and/or minimum wage because the FLSA does not apply to them. However, in October of 2013, the Department of Labor issued a new rule that would change the definition of these exemptions so that a broader class of workers will enjoy the overtime and minimum wage rights provided under the FLSA which will go into effect on January 1, 2015.

One of the biggest changes that the new rule presents is that third party employers may NOT claim the exemption any longer. What does this mean? If a home care worker is providing services to an individual in his or her home, but is employed by an outside agency and not the individual him/herself, then the worker is entitled to minimum wage and overtime. Said another way, only if the individual receiving the care, or the family of said individual, directly employs the home care worker, will the home care worker possibly be exempt from overtime and minimum wage requirements.

Even if the worker is directly employed by the consumer, the new rule narrows the definitions of the exemptions above so that a majority of the workers will still be entitled to minimum wage and overtime.

Under the “companionship services” exemption, the new rule defines companionship as “fellowship” and “protection” and requires that the worker spend at least 80% of his or her time performing fellowship and protection or else that worker is entitled to minimum wage and overtime payments. What do fellowship and protection mean? They mean: engaging the person in social, physical and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, errands, appointments and social events; and being present with the person in his or her home or outside of the home to monitor his or her safety and well-being. It does not include, however, domestic services which are provided primarily for benefit of other members of the household.

Under the “live-in” exemption, the new rule requires the employee to reside in the private home where she works on a “permanent basis” or “extended periods of time” in order for the exemption to apply. What does this mean? Permanent basis requires the worker to work and sleep at the employer’s premises seven days per week; and extended periods of time requires the worker to work and sleep at the employer’s premises for five days per week or five consecutive days or nights.

If you have any questions about whether you or someone you know is entitled to minimum wage and overtime, feel free to contact our office.