Direct homecare and domestic service employees are currently not covered by the overtime and minimum wage requirements of the Fair Labor Standards Act (FLSA), but this is going to change in 2015, says Susan Prince, JR, BLR Legal Editor.
Happy Thanksgiving, Readers!
Here’s Prince’s summary of the changes:
Direct Care Workers
Effective January 1, 2015, direct care workers employed by agencies and other third-party employers are entitled to receive minimum wage and overtime. Direct care workers include companions, certified nursing assistants, home health aides, personal care aides, and caregivers.
Domestic Service Employees
Also effective January 1, 2015, agencies and other third-party employers may no longer claim the overtime pay exemption for live-in domestic service workers. Live-in domestic service workers who are solely or jointly employed by a third party must earn at least federal minimum wage plus overtime.
According to the federal Department of Labor (DOL), live-in domestic service workers who live in the employer’s home permanently or for an extended period of time and are employed by an individual, family, or household are not entitled to overtime pay, but they must earn at least federal minimum wage.
The DOL states that employers of live-in domestic service workers may enter into agreements to exclude certain time from compensable hours worked, such as sleep time, meal time, and other periods of complete freedom from work duties. These employers must maintain accurate work records and may require live-in domestic service employees to record and submit their hours worked to the employer.
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Companionship Services Exemption
Employees providing “companionship services” may still be exempt from the rules, but the job functions that are considered exempt "companionship services" are more narrowly defined by the revised regulations. “Companionship services" is defined as “fellowship” and “protection.”
According to the DOL, "fellowship" means to engage the person receiving services in social, physical, and mental activities. "Protection" means to be present with the person receiving services in his or her home or to accompany the person when outside of the home to monitor the person’s safety and well-being.
The DOL states that examples of fellowship and protection may include conversation, reading, games, crafts, and accompanying the person on walks, on errands, to appointments, or to social events.
In Fact Sheet 79A, the DOL states that the term “companionship services” also includes the provision of care, when the care is provided attendant to and in conjunction with the companionship services, and is no more than 20 percent of the hours worked each week. The provision of care means assisting the person with:
- Activities of Daily Living (ADLs), such as dressing, grooming, feeding, bathing, toileting, and transferring; and
- Instrumental Activities of Daily Living (IADLs), which are tasks that enable a person to live independently at home, such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care.
Employers should note that companionship services does not include household work, such as making dinner or doing laundry for the entire family. Doing household work means that an employee may lose the exemption and be entitled to minimum wage and overtime.
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- $976,327: New Mexico aerospace company settles with 900 employees who were routinely required to work through lunch breaks without compensation.
- $340,400: New Jersey convenience store agrees to pay back wages and damages for violations of overtime and recordkeeping.
- $84,541: New York physical therapist agrees to pay 22 employees for minimum wage violations.
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