The U.S. Department of Labor ("DOL") has just announced that it will publish a Notice of Proposed Rulemaking to revise the current Fair Labor Standards Act regulations pertaining to the minimum wage and overtime exemptions for companionship services and live-in domestic service workers. The Proposed Rule would revise and limit the definitions of "domestic service employment" and "companionship services" for purposes of the overtime and minimum wage exemptions. The Proposed Rule would also clarify the duties "incidental" to companionship services, amend the recordkeeping requirements for live-in workers, and amend the regulations regarding employment by third party employers. Third party employers, for example, would no longer be able to claim the exemption, even if the employee is jointly employed by the third party and the family or household. The intent of the Proposed Rule is to more clearly define the tasks that may be performed by an exempt companion and limit the companionship exemption to companions employed only by the family or household using the services. If enacted, the Proposed Rule will likely eliminate the exemption for a number of workers, bringing many home health aides, companions and other domestic service workers within the sphere of FLSA protection. Following its publication, employers will have 60 days to comment on the Proposed Rule.
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