Home Health Care Worker Exemption Narrowed by USDOL Final Rule
October 8, 2013
On September 17, 2013, the United States Department of Labor issued its final rule extending the minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA”) to home health care workers. This new rule is expected to bring almost 2 million workers under the FLSA’s protection.
The FLSA currently exempts a large category of in-home workers who care for elderly, ill, injured, and disabled individuals from its minimum wage and overtime provisions. These workers are exempt under the companionship or live-in domestic services exemption, which has been broadly defined to include a variety of services and jobs from babysitting to providing home health care services.
Under the new rule, which becomes effective on January 1, 2015, the exemption for companionship and live-in domestic services has been narrowed to exclude employees of home health care agencies and other third-party employers. Such workers will be entitled to minimum wage for all hours of work and overtime pay for all hours over 40 hours worked in any workweek. Employers will also be required to keep records of hours worked by live-in domestic service workers and can require such employees to record their hours and submit the records to them.
Despite the narrowing of the companionship exemption, it can still apply to employees who are employed directly by families if the employees provide fellowship and protection services such as reading, playing cards, going on walks, etc. Also, live-in domestic service workers who reside in the home of the employer for an extended period of time and are employed by the family remain exempt from the overtime provisions of the FLSA (though they are not exempt from the minimum wage provisions).
If you need advice with respect to this final rule or other Fair Labor Standards Act matters, contact John R. Vreeland, Director of the firm’s Wage & Hour Compliance Practice Group, jvreeland@genovaburns.com or Brett M. Pugach, Esq., bpugach@genovaburns.com, in the Labor Law Practice Group.