What the DOL rules reform means for home care workers

The Companionship Rules Reform:
What the DOL rules reform means for
home care workers.
Sarah Leberstein
Staff Attorney
National Employment Law Project
(212) 285-3025 x313
[email protected]
The Companionship Exemption
• How it came about:
Congress extended FLSA protections to
domestic workers in 1974, with 2 exceptions: casual babysitters + workers
providing companionship services. DOL rules defining companionship
turned narrow exception into wholesale carve-out for home care
• Effect:
All/ virtually all home care workers exempted from federal
minimum wage and overtime protections.
• State-level rights:
Many states follow federal exemption but 21 states
have covered all or some workers under their MW and/or OT laws.
• What it means for workers:
Many workers not paid overtime, or for
travel time or overnight hours. High rates of violations of state laws.
December 2011:
Obama announces proposed revisions to
companionship regulations.
All home care
workers exempt.
Revised Rules:
2 Main changes
1. Workers employed by a 3rd party
will be covered by minimum
wage & overtime.
Most home care
workers covered.
Small portion exempt.
2. What counts as exempt
“companionship services” much
narrower. Exemption will now apply
only to workers who primarily
provide fellowship & protection. If
worker spends more than 20% of
weekly work hours per client on
assistance with daily activities, or
does any general housekeeping or
medical tasks, she’s covered by
minimum wage & overtime.
Additional change: reform of record-keeping
requirements for live-in domestic workers
• Employers must now keep actual records of the hours worked by
domestic service employees.
• This is an improvement from the current rules, which permit the
employer of a live-in domestic worker to have an agreement with
the worker about work hours and only requires that the employer
track deviations from that agreement. Agreement doesn’t even
have to be express or in writing!
• No particular form of records required, but employer must include
certain identifying information about the employee and data about
the hours worked and the wages earned.
• Remember: this requirement only applies to workers who are
covered by the FLSA, not workers still subject to the companionship
Who is exempt?
1. Employed solely by individual or private household
• Home care agency → not exempt.
• Home care agency + private household → not exempt.
• Private household, no intermediary → could be exempt, depending on her duties
NOTE: depends on facts of the specific relationship in question.
-AND2. Worker provides companionship services
Spends more than 20% of weekly work hours per client on assistance with ADLs
and IADLs? → not exempt.
Performs any general housekeeping → not exempt.
Performs any medically related services → not exempt.
Spends 80% or more of her time (per client) providing fellowship + protection, and
the remaining time help with ADLs/IADLs → exempt (if fulfills 1 above).
What do these terms mean?
Defined/explained in rules and on DOL website
Fellowship & protection – engaging the person in social, physical, and mental
activities such as conversation, reading, games, etc., and being present with the
person to monitor his or her safety and well being.
ADLs – Activities of Daily Living. Examples are dressing, grooming, feeding, bathing,
toileting, and transferring
IADLs – Instrumental Activities of Daily Living. Examples are meal preparation,
driving, light housework, managing finances, assisting with the physical taking of
medications, and arranging medical care.
General housekeeping - domestic services that are primarily on behalf of other
members of the household, such as doing laundry for another family member or
preparing meals for someone other than the person being assisted
Medically related services – services that typically require and are performed by
trained medical personnel. May be invasive, sterile, or otherwise require exercising
medical judgment, such as assisting with tube feeding or catheter care.
Ex. 1: Agency Worker
Based on fact that worker employed by a 3rd party employer (agency),
worker not exempt
• Worker entitled to federal minimum wage and overtime
• Agency required to pay federal minimum wage and overtime
Ex. 2: Independent Provider, state Medicaid Program
1. Employer(s)?
Probably client. Also state entity? Fiscal Intermediary?
2. What are duties?
Primarily assisting client with ADLs and IADLs. Each 4-hour shift,
worker required to help client get out of bed, bathe, dress and eat.
Based on duties, worker is not exempt.
• Worker entitled to federal minimum wage & overtime
• State entity/intermediary required to pay federal minimum wage
& overtime
• Client required to pay federal minimum wage & overtime
Ex. 3: Housekeeper turned caregiver
1. Employer?
Private household – could be exempt, depending on duties.
2. What are duties?
Primarily fellowship & protection. Less than 20% of time on ADLs +
Based on employer and duties, worker is exempt.
But, if worker performs domestic service for any other members of
household, she’s not exempt.
State Impacts
State Impacts, cont.
In 29
states + P.R. workers will have 1st time
minimum wage & overtime rights: AL, AK, AR, CT,
SC, TN, TX, UT, VT, VA, WV, and WY.
In 13
states + D.C. workers will be covered by a higher
state minimum wage rate (vs. federal minimum wage):
AZ, CA, CO, CT, FL, IL, ME, MA, MI, MO, NV, OH, and WA.
→ 2 states, CT and FL, will newly cover workers at the higher
state rate.
In 6
states + D.C. workers will have 1st time
overtime rights: AZ, CA, NE, ND, OH, and SD.
• Most home care workers will now be covered
under federal minimum wage & overtime protections. Only small
portion of workforce will remain exempt.
• Pay attention to state rules.
In many states, workers are
also covered under state minimum wage and overtime rules, or
just MW. Some states newly cover workers because they track
federal definitions
• Education & outreach will be vital
to ensuring workers
know their rights and employers follow rules. Experience in states
with coverage has shown that this industry is particularly prone to
• Advocates should encourage state and federal
agencies to educate, enforce and coordinate
with each other.
Sarah Leberstein
Staff Attorney
(212) 285-3025 x313
[email protected]
Cathy Ruckelshaus
Good Jobs Program Director
(212) 285-3025 x306
[email protected]

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