On December 15, 2011, the Department of Labor’s Wage and Hour Division (WHD) issued its much-anticipated proposed rule (pdf) that could make more than a million domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, the home healthcare industry has changed since the FLSA regulations governing home care employees were enacted more than 35 years ago. To that end, the proposal seeks to revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household.

When Congress expanded FLSA protections to “domestic service” workers in 1974, these amendments also created a limited exemption from both the minimum wage and overtime pay requirements for casual babysitters and companions for the aged and infirm, and created an exemption from the overtime pay requirement for live-in domestic workers. The sections of the FLSA at issue include 13(a)(15), which exempts from the Act’s minimum wage and overtime provisions domestic service employees employed “to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves” and section 13(b)(21), which exempts from the overtime provision any employee employed “in domestic service in a household and who resides in such household.” Among other changes, the proposed rule would do the following:

• Redefine domestic service employment to eliminate the requirement that domestic services be performed in the home of the employer, and revise the nonexclusive list of the types of domestic workers covered by the regulation to include home health aides, personal care aides, and nannies.
• With respect to companionship services, the proposal clarifies that these services are limited to 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. The definition allows a worker to perform certain related personal care services so long as those services are performed incidental to the “core companionship functions” and do not exceed 20 percent of the employee’s time during a work week. Such duties include dressing, grooming, toileting, driving to appointments, feeding, laundry, and bathing. Duties that are not considered incidental to the provision of fellowship and protection – and are therefore not subject to the exemption even if they consume less than 20 percent of the worker’s time – include general household work such as vacuuming, washing windows, and dusting.
• The proposal explains that these companionship services do not include the performance of medically-related tasks for which training is typically a prerequisite.
• Third party employers must pay the home service worker minimum wage and overtime, even if they are joint employers with a household or individual. An individual or member of the family or household using the services, however, is permitted to use the exemption even if a joint employer.
• The FLSA overtime and minimum wage requirements apply to live-in domestic service workers employed by an employer or agency other than individual or member of family or household using the services.
• Employers would be required to maintain records of hours worked for each live-in domestic employee. Maintaining a work agreement with the worker would be insufficient for record-keeping purposes.

More detailed information on this proposal will be forthcoming. In the meantime, the DOL has created a web page devoted to this rulemaking effort. This page includes a fact sheet on the proposal; a list of frequently asked questions; and a comparison chart describing the differences between the current and proposed rule. 

Comments to this proposal must be identified by RIN 1235-AA05, and be submitted within 60 days of its publication in the Federal Register. Comments may be submitted electronically through the federal eRulemaking portal, or sent in hard copy to Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Photo credit:  AlexRaths