On December 15, 2011, President Obama and the Department of Labor issued a notice that it will soon publish a Notice of Proposed Rulemaking to the Companionship and Live-In Worker Regulations. The current regulation, created in 1974, is an exemption from minimum wage and overtime pay requirements for casual babysitters and companions for the aged and infirm. It also created an exemption only for live in domestic workers. The exemption has not been substantially changed since 1975.
Because the in-home healthcare industry has changed and grown significantly since 1975, President Obama is changing the exemption to provide extra protection for our country’s in-home healthcare workers. When the exemption was originally created, it was intended to be used for casual babysitters and neighbors performing elder sitting. Today, many in-home care workers are employed by staffing agencies and have many more responsibilities than keeping someone company. Workers employed by in-home staffing agencies were not what Congress originally intended to have exempted. President Obama now wants to provide protections under the FLSA for these professional caregivers.
On December 15, 2011, in President Obama’s Remarks on Minimum Wage and Overtime Protections for In-Home Care Workers, he stated “Today, we’re guaranteeing homecare workers minimum wage and overtime pay protection. And that’s thanks to the hard work of my Secretary of Labor, Hilda Solis. We are going to make sure that over a million men and women in one of the fastest-growing professions in the country don’t slip through the cracks. We’re going to make sure that companies who do right by their workers aren’t undercut by companies who don’t. We’re going to do what’s fair, and we’re going to do what’s right.”
The Department of Labor is not eliminating the exemption, but proposing significant changes on the limitations. The new regulations will define the tasks that may be performed by an exempt companion more clearly. The new definition of a companion’s duties is limited to fellowship and protection, with some allowance for certain personal care services, as long as the service is incidental (does not exceed 20% of the hours worked that week) and performed along with the protection and fellowship. Companionship and fellowship include activities such as playing cards, watching television, visiting with friends, taking walks, and engaging in hobbies. The incidental personal care services include activities such as dressing, grooming, toileting, driving to appointments, feeding, laundry, and bathing. Companion’s duties would no longer include general household work; as evidenced by Congress’s protections for housekeeping employees, it wants these types of employees to be protected by the FLSA.
The proposed exemption will now only apply to companions employed only by the family or the household; it will not apply to third parties such as in home staffing agencies. The proposed change will still allow the household employing the worker to claim the exemption even if it is a joint employer with an agency. However, the agency can no longer claim the exemption when it is a joint employer with the household.
The proposed exemption will make the record-keeping requirements for live-in domestic workers the same as for other employers under the FLSA.
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