Authored by Alex Passantino
Today, the Department of Labor’s Wage and Hour Division (WHD) announced that it would soon be publishing a Notice of Proposed Rulemaking regarding the companionship exemption from the Fair Labor Standards Act. Among other changes, the Department will propose to limit the exemption to companions employed only by the family or household using the services. The Department proposes to change the regulations to prevent third party employers, such as in-home care staffing agencies, from claiming the exemption, even if the employee is jointly employed by the third party and the family or household.
The companionship exemption was included in the 1974 FLSA Amendments and provides an exemption from the FLSA’s minimum wage and overtime requirements for “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” The implementing regulations followed in 1975 and have remained largely unchanged since that time, providing that: “Employees who are engaged in providing companionship services, . . . , and who are employed by an employer or agency other than the family or household using their services, are exempt from the Act’s minimum wage and overtime pay requirements.”
In the early 2000s, however, the regulations were subjected to several legal challenges, including one that reached the United States Supreme Court. Around that time, in the first-ever Wage and Hour Advisory Memorandum, WHD read the statutory language “naturally . . . to exempt any employee who provides companionship services to an aged or infirm individual in a private home.” WHD further noted that “the statute does not draw any distinction between companions who are employed by the owners of the homes in which they are working and companions who are instead employed by third party employers.” Ultimately, in the case of Long Island Care at Home, Ltd. v. Coke, a unanimous Supreme Court upheld WHD’s interpretation of the statute.
In explaining why it now seeks to change the regulations, the Department notes that there has been a growing demand for long-term in-home care, a substantial increase in the in-home care services industry, and “among the lowest in the service industry” earnings of in-home care employees.
Thus, the Department proposes to eliminate the application of the companionship exemption for third-party employers. In addition, the Department would further limit application of the exemption to those individuals for whom companionship services is not a vocation. The Department proposes to do so by limiting the application of the exemption to individuals who provide “fellowship” and “protection” to the aged or infirm. The Department also proposes to allow up to 20% of an employee’s time to be spent on “incidental intimate personal care” services, which include: “occasional” dressing (such as putting on coats and shoes); “occasional” grooming (such as combing and brushing hair or washing hands and face); “occasional” driving to and from appointments; “occasional” toileting; “occasional” feeding, “including preparing food eaten by the person while the companion is present”; “occasional placing clothing that has been worn by the person in the laundry, including depositing the person’s clothing in a washing machine or dryer, and assisting with hanging, folding, and putting away the person’s clothing” and “occasional” bathing “when exigent circumstances arise.”
The proposal would also further explain which medical care services cannot be provided by companions, including “catheter and ostomy care, wound care, injections, blood and blood pressure testing, turning and repositioning, determining the need for medication, tube feeding, and physical therapy.”
It is important to remember that this is simply the Department’s proposal. Once the proposal is published in the Federal Register — presumably within the next several days — interested parties will have the opportunity to provide comments regarding the Department’s proposal (typically 60 to 90 days). Only after review and analysis of those comments, and publication of a final rule, will these proposed changes be effective.