There have been further developments regarding the U.S.
Department of Labor's proposed regulation that would
drastically limit the Fair Labor Standard Act's Section
13(a)(15) "companionship" exemption. A collection
of our posts relating to these matters can be accessed
The comment period for the proposed regulation closed on March
21, but the fight over the exemption continues with the
Senate's recent entry into the fray. A group of 11
Republican senators has introduced S. 3280 to block the proposed
regulation. The "Companionship Exemption Protection
Act" would amend the FLSA to preserve the current state of the
Two of the bill's sponsors, Senators Alexander (R-Tenn.) and
Johanns (R-Neb.), argue that the proposed regulation would drive up
the cost of in-home care and would force families to
institutionalize seniors, thereby straining state Medicaid
budgets. Their proposal is a more-elaborate take on the
matter than is the identically-named H.R. 3066, introduced in the House of
Representatives last September by Nebraska Republican Lee
Terry. One feature the bills have in common is that each
would remove the Secretary of Labor's authority to
"define and delimit" the exemption.
The companionship exemption provides that the FLSA's
minimum-wage and overtime requirements do not apply to employees
"employed in domestic service employment to provide
companionship services for individuals who (because of age or
infirmity) are unable to care for themselves . . .."
However, USDOL's proposed regulation would revised the
exemption by, among other things, significantly reducing the scope
of exempt activities and making the exemption inapplicable to
workers employed by third-party staffing agencies. The most
significant practical impact of the proposed regulation would be
that far fewer individuals would qualify for the exemption.
As we previously
noted, proponents of the effort to narrow the exemption
initially sought to do so through legislative action.
However, those efforts subsequently shifted to the regulatory
arena, most likely on the basis of political considerations.
Now, the battle appears to have come full circle.
Incidentally, neither of these bills would affect the
potential impact of USDOL's proposals upon the FLSA's
Section 13(b)(21) overtime exemption applying to "any employee
who is employed in domestic service in a household and who resides
in such household . . .."
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Companies must train front-line managers to be on the lookout for signs that an employee might need a job accommodation because workers who want help when a medical issue hinders their job performance don't always clearly ask for it.
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