Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739
E-mail: ElizabethHogue@ElizabethHogue.net
The U.S. Department of Labor (DOL) proposes to revise the current Fair Labor Standards Act (FLSA) regarding the exemption for companionship services and live-in domestic services. The FLSA currently exempts from its minimum wage and overtime provisions domestic service employees employed "to provide companionship services for individuals who because of age or infirmity are unable to care for themselves." The FLSA also currently exempts workers employed in domestic service in a household and who reside in such households from requirements to provide overtime pay.
The DOL will publish proposed regulations in the Federal Register to revise the definitions of "domestic service employment" and "companionship service." The proposed regulations will clarify the type of activities and duties that are considered "incidental" to the provision for companionship services. The DOL also proposes to revise the record-keeping requirements for live-in domestic workers. Finally, the DOL proposes to continue to allow individuals, families, or households employing workers to apply the companionship and live-in exemptions, but would deny the use of such exemptions to all third parties.
According to the proposed regulations, the term "companionship services" may include intimate personal care services that are incidental to the provision of fellowship and the protection for the aged or infirm person. These intimate personal care services must be performed attendant to and in conjunction with the provision of fellowship or protection. The performance of incidental intimate personal care services must not exceed twenty percent of the total hours worked in the work week. Incidental intimate personal care services may include:
- Occasional dressing, such as putting on and taking off outerwear and footwear
- Occasional grooming, including combing and brushing hair, etc.
- Occasional toileting; including assistance with transfers, mobility, positioning, etc.
- Occasional driving to appointments, errands, and social events
- Occasional feeding, including preparing food eaten by the person while the companion is present and assistance with clean-up;
- Occasional placing of clothing that has been worn by the person in the laundry; including depositing the person's clothing in a washing machine or dryer, folding, hanging, and putting away
- Occasional bathing, when exigent circumstances arise
- Reminding of medical appointments or a predetermined medicinal schedule
The proposed regulations specifically state that the following activities are not included in the definition of intimate personal care services:
- Household work benefiting other members of the household
- Household services performed by or ordinarily performed by employees; such as cooks, maids, housekeepers, nannies, nurses, etc.; unless they are performed only incidental to the provision of fellowship and protection of the infirm person
- Medical care that is typically provided by personnel with specialized training; including, but not limited to, catheter and ostomy care, wound care, injections, blood and blood pressure testing, turning and repositioning, determining the need for medications, tube feedings, and physical therapy
In addition, the DOL proposes to require agencies that rely on agreements with workers to meet the requirements of the exemption to revise those agreements, if there are significant deviations from initial agreements.
The DOL also proposes to deny the exemption for companionship services to third party employers, including both minimum wage and overtime exemptions, even if employees are jointly employed by individuals or members of the family or household using the services. If all requirements of the FLSA are met, individuals and members of the family or household would still be entitled to the exemptions, even if they are considered joint employers.
Finally, under the proposed regulations, employers will be required to keep copies of agreements used to meet the requirements of the exemption under the FLSA and will be required to make, keep, and preserve a record showing the exact number of hours worked by live-in domestic employees. If, however, domestic service employees work on fixed schedules, employers may use a schedule of daily and weekly hours that employees normally work. Either employers or employees may:
1. Indicate by check marks, statements, or other methods that such hours were actually worked; and
2. Show the exact number of hours worked when more or less than the scheduled hours are worked.
Except for live-in domestic services, employees may require domestic service employees to record the hours they work and submit such records to their employers.
Agencies will have sixty days to submit comments after the proposed regulations are published in the Federal Register. In the past, input from agencies has had an impact on proposed regulations published by the DOL that address these exemptions. Agencies should also help ensure that clients and their families weigh in on the effect these changes will have on them.
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