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FLSA Companionship Services Exemption Challenged

UPDATE: September 2015

The proposed FLSA Companionship Services rules changes discussed below go into effect October 16, 2015 and the US DOL will begin enforcement November 16, 2015.

March 2012 

The US Department of Labor, under the guidance of Secretary Solis, published proposed rules changes to the Fair Labor Standards Act (FLSA) that impact household employment, particularly senior care or elder caregivers.

Currently, “companionship care” for the aged and infirm is NOT covered under minimum wage and overtime provisions of the FLSA. Companionship care today may include general household work – vacuuming, laundry, etc. – so long as these services do not exceed 20% of the hours worked.

The proposed changes would:

  1. Limit the duties of a companion to care and fellowship, allowing no more than 20% of the hours worked to include personal care services (driving to a doctor appointment, helping with activities of daily living such as bathing, dressing, feeding). Employment under the ‘companionship exemption’ may not involve ANY housekeeping services.
  2. Provide that the ‘companionship exemption’ only applies to persons employed by a private household. Third party senior care services, therefore, would be required to employ their caregivers with minimum wage and overtime protections.
  3. Require that accurate and contemporaneous time tracking records must be kept for all household workers, including live in domestic service workers.
  4. Reiterate that overnight care may only include non-compensated sleep time (8 hours) if the shift was a full 24 hours and it was uninterrupted.

HISTORY: The FLSA was enacted in 1938 to regulate minimum wages, maximum working hours, and child labor in industries within interstate commerce. In 1974, domestic service employees were added to the categories of employees covered by the minimum wage and maximum hours provisions through amendments to the FLSA. However, these amendments also created the companionship services exemption, excluding from the FLSA’s minimum wage and overtime requirements those domestic service employees who provide companionship services to the elderly in their homes. The creation of a companionship services exemption was supported by important public policy considerations. Caregivers who are exempt from the FLSA can provide lower cost services, and thus, the companionship services exemption enables more elderly and disabled people to receive needed services that might otherwise be unaffordable. For some of these individuals, the only alternative to home care and the receipt of companionship services would be institutionalization.

There were several legislative attempts to expand the FLSA coverage applied to ‘companions for the elderly and infirm’ in the late ’90’s. The proposed amendments included a change in the definition of companionship services which would deny the application of the exemption if the employee was employed by someone other than a member of the family in whose home he or she works, revise the duties which would qualify for the exemption, and to clarify the criteria to be used to determine whether employees qualify as “trained personnel” who are not exempt under the companionship services exemption. None of the legislation was enacted. Thus, as the law currently stands, and particularly in view of the Secretary’s withdrawal of his proposal to limit the exemption, the companionship exemption continues to apply to home health aides unless an exception to the exemption applies.

SUMMARY: The US Department of Labor is expected to announce their final decision in the summer of 2012. The public comment period closed March 2012. Senior caregiving, or personal attendants, are among the fastest growing occupations in the US as the baby boomers age and life expectancies increase. With the trend to aging in place, or postponing for as long as practical the move from independent living to a residential care facility, the demand for such workers will continue to increase.

Link to FLSA 29 CFR §552

Minimum Wage & Overtime Senior Care Companions by State

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