On September 17, 2013, the U.S. Department of Labor (“DOL”) issued a final rule extending the federal minimum wage and overtime pay protection under the Fair Labor Standards Act (the “FLSA”) to many direct care or domestic service workers, including home health aides, personal care aides and nursing assistants. The rule will take effect on January 1, 2015.
For almost 40 years, an exemption from the minimum wage and overtime requirements of the FLSA has applied to domestic service workers employed to provide “companionship services” for an elderly person or a person with an illness, injury, or disability.
Under the new rule, direct care workers employed by home care agencies and other third parties will no longer be exempt from the minimum wage and overtime requirements. Individual workers who are employed directly by the person or family receiving companionship services will remain exempt under the FLSA.
Furthermore, the tasks that comprise “companionship services” are now more clearly defined. “Companionship services,” according to the DOL, means services for the care, fellowship, and protection of persons who because of advanced age or infirmity cannot care for themselves. Such services include meal preparation, bed making, and clothes washing.
Direct care workers who perform medical or medically-related services for which training is a prerequisite are not considered companionship workers, and thus are not exempt from protection under the FLSA.
General household work can be “companionship services,” as long as it does not exceed 20% of the total weekly hours worked by the companion employee. If this 20% limit is exceeded, the employee must be paid in compliance with the minimum wage and overtime pay requirements of the FLSA.
According to the DOL’s news release, there are an estimated 1.9 million direct care workers in the United States, nearly all of whom are currently employed by home care agencies.