Home Care Final Rule: DOL Issues Guidance

By Susan Prince, JD

The Federal Department of Labor (DOL) has released guidance on issues regarding the Home Care Final Rule. On December 17, 2015, the Wage and Hour Division (WHD) issued Field Assistance Bulletin 2015-1: Credit toward Wages under Section 3(m) of the FLSA for Lodging Provided to Employees to provide guidance on employers taking a credit toward wages under section 3(m) of the Fair Labor Standards Act (FLSA) for lodging provided to employees. The DOL has also provided a set of Questions and Answers on this topic.

Section 3(m) of the FLSA allows an employer to count the value of food, housing, or other facilities provided to employees towards wages under certain circumstances. An employer who wishes to claim the section 3(m) credit for lodging must ensure that the following five requirements are met:

1. Lodging must be regularly provided by the employer or similar employers;
2. The employee must voluntarily accept the lodging;
3. The lodging must be furnished in compliance with applicable federal, state, or local laws;
4. The lodging must primarily benefit the employee, rather than the employer; and
5. The employer must maintain accurate records of the costs incurred in the furnishing of the lodging.

The following is a sampling taken from the DOL’s Questions and Answers.

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