Yesterday, the Department of Labor announced that it intends to propose a new regulation which would limit the overtime pay exemption available for individuals employed as companions. “The proposal will revise the companionship and live-in worker regulations under the Fair Labor Standards Act to more clearly define the tasks that may be performed by an exempt companion, and to limit the companionship exemption to companions employed only by the family or household using the services. In addition, the Department proposes that third party employers, such as in-home care staffing agencies, could not claim the companionship exemption or the overtime exemption for live-in domestic workers, even if the employee is jointly employed by the third party and the family or household.” This proposal comes following a 2007 Supreme Court decision in Long Island Care at Home Ltd v. Coke, which found that the FLSA regulatory exemption for individuals employed as companions for the elderly and infirm applied to exempt the employee regardless of whether the employee was employed by a third-party provider or by the client or client family.
The proposed regulation has not yet been published in the Federal Register, which will give the public the opportunity to comment upon the proposed regulation.
Among other things, the proposed regulation would limit to 20% of the employee’s time spent in incidental activities unrelated to fellowship and protection: “The proposed regulation provides an illustrative list of permissible incidental services that may be provided by an exempt companion, such as occasional dressing, grooming, and driving to appointments, if this work is performed in conjunction with the fellowship and protection of the individual, and does not exceed 20 percent of the total hours worked by the companion in the workweek.” Similarly, the proposed regulation would preclude the employee from performing housework if the employer wants to maintain the exemption: “any performance of general household work would result in the loss of the exemption for the week.” Thus, regardless of whether the companion is employed by a third-party provider or an individual family, the companion would be entitled to overtime if s/he performs any household cleaning or any other task (such as driving, grocery shopping, dressing, or grooming), more than 20% of the time.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
