January 13, 2012
On Thursday, December 15, 2011, the Obama administration proposed regulations to give the nation’s nearly two million homecare workers minimum wage and overtime protections. These workers have long
been exempted from federal labor laws since 1974. Although some states, including California, guarantee homecare workers either minimum wage, overtime, or both, 29 states do not offer these protections.
NOTICE OF PROPOSED RULEMAKING
The U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) on December 27, 2011 outlining the proposed revisions to the Fair Labor Standards Act’s (FLSA) exemptions for “companionship” services and live-in domestic employees. The proposed revisions would drastically limit the current exemptions. According to the DOL, “due to signifi cant changes in the home health care industry over the last 35 years, workers who today provide inhome care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were promulgated” and thus revisions were necessary. The deadline for submitting objections or other comments is February 27, 2012.
THE PROPOSED REVISIONS
Under the current FLSA exemption, minimum-wage and overtime requirements do not apply to employees “employed in domestic service employment to provide companionship services for individuals who (because of infirmity) are unable to care for themselves…” The NPRM limitations would substantially limit these exemptions.
Under the proposed revisions, the exemption would be limited to companions employed only by the individual, family, or household and thus inapplicable to third party employers providing companions. In addition, the NPRM proposes to (1) revise the definition of “domestic service employment” and “companionship services,” (2) clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services (i.e. incidental personal care services must be limited to less than 20% of total hours worked or the exemption is lost for that workweek), and (3) amend the record-keeping requirements for live-in domestic workers.
Many are in opposition to the proposal, arguing this will substantially increase labor costs for third-party employers who will not longer be able to rely upon the exemption, resulting in greater financial burdens for families depending on these service providers.