HR Management & Compliance

New Rules Proposed to Provide FLSA Protections to In-Home Care Workers

The U.S. Department of Labor (DOL) is proposing a rule change that would expand minimum wage and overtime protections for many employees in the home-care industry.

A statement from the White House on December 15 said that if implemented, the proposed rule would affect nearly two million workers who provide in-home care services for the elderly and infirm.

Under current rules, workers classified as “companions” are exempt from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements. The proposed rule would require minimum wage and overtime for home-care workers employed by third parties such as staffing agencies as well as for home-care workers employed by families to perform skilled care such as medical tasks for which training is typically a prerequisite.

The DOL said it is proposing the rule change for two purposes:

  • to more clearly define the tasks that may be performed by an exempt companion; and
  • to limit the companionship exemption to companions employed only by the family or household using the services. Third-party employers, such as in-home care staffing agencies, could not claim the exemption even if the employee is jointly employed by the third party and the family or household.

Those employed by families that are “truly engaged in tasks related to fellowship and protection — such as visiting with friends and neighbors or engaging in hobbies — would still be considered ‘companions’ and will not be subject to wage protections,” according to the White House announcement.

The White House statement said that when the companionship exemption was established in 1974, it was meant to apply “to casual babysitters and companions for the elderly and infirm, not workers whose vocation was in-home care service, and who were responsible for their families’ support.”

Secretary of Labor Hilda L. Solis said the proposed regulation would ensure that in-home workers are “properly classified so they receive appropriate compensation and that employers who have been treating these workers fairly are no longer at a competitive disadvantage.”

In 2007, the U.S. Supreme Court ruled that the DOL had the authority to exempt companionship workers, even those employed by third parties or providing skilled care.

Twenty-nine states currently don’t include home health care workers in their minimum wage and overtime provisions, according to the White House statement. Sixteen states extend both minimum wage and overtime coverage to most home health care workers, and five states and Washington, D.C., extend minimum wage but not overtime coverage to home health care workers.

Once the proposed rule is published in the Federal Register, interested parties will be invited to submit written comments for a specified comment period.

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