When the federal Fair Labor Standards Act was passed in 1938, it did not apply to workers providing "domestic service." Thus, individuals like cooks, housekeepers, nannies, maids, and gardeners were exempt from the law's minimum wage and overtime requirements. In 1974, the FLSA was amended to cover most domestic workers, other than casual babysitters and "companions" for the elderly or infirm. The Department of Labor has now proposed regulations which would narrow still further the categories of exempt domestic employees. Those who employ caregivers should pay attention, because their wage obligations may soon change.
Under the FLSA, employees "employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" are exempt. The regulations currently define "companionship services" as "services for the care, fellowship, and protection of persons who," because of age or infirmity, are unable to care for themselves. Such services include household work such as meal preparation, bed making, and laundry. General household work, such as vacuuming and dusting, is also included, as long as it does not exceed 20% of the companion's time.
The proposed new definition of "companionship services" would be limited to those duties "that are directly related to the provision of fellowship and protection . . . ." While the regulations would still allow for the performance of personal care services, they would require that such services be incidental to the core companionship functions and not exceed 20% of the companion's time. Thus, under the DOL's proposal, personal care services—which are now covered—would be limited, and the performance of general household work, like cleaning, would result in a loss of the exemption for the week during which it was performed.
Finally, the proposed regulation would limit the exemption to individuals employed directly by the family or household in need of services. In 2007, the United States Supreme Court affirmed the DOL's authority to "work out the details" of the statute's broad language and upheld the companionship exemption's applicability to third-party employers, such as agencies. Long Island Care at Home v. Coke, 551 U.S. 158 (2007). Coke forecloses any argument that the DOL lacks the authority to limit the exemption as proposed.
If these rules are approved as proposed, agencies in the business of providing home health care services can expect sharp increases in their labor costs. And those costs will, of course, be passed along to the families and households that use these agencies to secure caregivers. Families or households that employ caregivers directly will need to pay close attention to the tasks being performed in the home or risk running afoul of the FLSA's minimum wage and overtime requirements.
As always, employers—including individuals and families employing domestic workers—need to be mindful of not just federal law, but also state law. Many states do not recognize the companionship exemption. In Maine, for example, the exemption for individuals "employed in domestic service in or about a private home and engaged directly by the resident or owner of that private home . . ." was repealed in 2008. Thus, in Maine, as in many states, employers are already required to pay minimum wage and overtime to companions for elderly or infirm family members.
This is a complicated and evolving area of the law, where it is easy to make costly mistakes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
