As the federal government shut down on October 1, the Department of Labor published in the Federal Register the final regulation expanding coverage of the Fair Labor Standards Act to reach most home care/domestic service workers beginning on January 1, 2015. Although the revisions to domestic service worker regulations take only one page in the Federal Register, the DOL’s explanation for the changes takes 104 pages. Among the most important changes are that the FLSA exemption for individuals providing “companionship services” will no longer be available to cover individuals employed by third-party employers OR who spend more than 20% of their working time performing personal care services (such as housekeeping, cooking, dressing, bathing, managing finances, grooming, or transportation, etc.). This means that FLSA coverage could now extend to families which employ a home care worker to care for grandma when that individual spends more than 20% of his or her time each week cooking, cleaning or driving grandma on her errands or to medical appointments, etc.
In 1974, Congress created a FLSA exemption for live-in
domestic service workers and those workers who provided companionship
services. 29 U.S.C. §213(a)(15) and
(b)(21). These exceptions provide that
the minimum and overtime wage provisions do not apply to
·
any employee employed on
a casual basis in domestic service employment to provide babysitting services,
or
·
any employee employed in
domestic service employment to provide companionship services for individuals
who (because of age or infirmity) are unable to care for themselves
Likewise, the overtime provisions do not apply to “any
employee who is employed in domestic service in a household and who resides in
such household.” Since that time, the
home care industry has changed considerably and the DOL felt it was necessary
to update its 1975 regulations.
Because the regulations are so short, here are a
few of the material changes:
·
Domestic service employment. The term domestic
service employment means services of a household nature performed by
an employee in or about a private home (permanent or temporary). The term includes
services performed by employees
such as companions, babysitters, cooks, waiters, butlers, valets, maids,
housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen,
gardeners, home health aides, personal care aides, and chauffeurs of
automobiles for family use. This listing
is illustrative and not exhaustive.
·
Companionship services. As used in [the FLSA] the term companionship services means the provision of fellowship and protection
for an elderly person or person with an illness, injury, or disability who
requires assistance in caring for himself or herself.
o
The provision
of fellowship
means to engage the person
in social, physical, and mental activities, such as conversation, reading,
games, crafts, or accompanying the person on walks, on errands, to appointments,
or to social events.
o
The provision
of protection
means to be present with the
person in his or her home or to accompany the person when outside of the home
to monitor the person’s safety and well-being.
o
Persons who provide care and protection for babies
and young children who do not have illnesses, injuries, or disabilities are considered
babysitters, not companions.
·
The term
companionship
services also includes the provision of care if the care is provided attendant
to and in conjunction with the provision of fellowship and protection and if
it does not exceed 20 percent of the total hours worked per person and per
workweek.
o
The
provision of care means to
assist the person with activities of daily living (such as dressing, grooming,
feeding, bathing, toileting, and transferring) and instrumental activities of
daily living, which are tasks that enable a person to live independently at
home (such as meal preparation, driving,
light housework, managing finances, assistance with the physical taking of medications,
and arranging medical care).
o
The term
companionship
services does not include domestic services performed
primarily for the benefit of other members of the household and does not include the performance of medically related services provided for the
person. The determination of whether services are medically related is based on
whether the services typically require and are performed by trained personnel,
such as registered nurses, licensed practical nurses, or certified nursing assistants; the determination is not based on
the actual training or occupational title of the individual performing the
services.
·
Third
party employers of employees engaged in companionship services and of live-in
domestic service employees may not avail themselves of the minimum wage and
overtime exemptions for such employees even if the employees are jointly
employed by an individual, family or household (who remains entitled to claim
the exemption) using the services.
·
Employers
are required to maintain records of hours worked by each covered domestic
service employee. However,
the employer may require the domestic service employee to record the hours
worked and submit such record to the employer.
·
No
records are required for casual babysitters.
The FLSA exemption for babysitters remains unchanged by
these changes, but I thought it might be interesting for readers to be reminded
that a regulation for babysitters exists:
§ 552.104 Babysitting services
performed on a casual basis.
·
Employees performing
babysitting services on a casual basis, as defined in § 552.5
are excluded from the minimum wage and overtime provisions of the Act. The
rationale for this exclusion is that such persons are usually not dependent
upon the income from rendering such services for their livelihood. Such
services are often provided by (1) Teenagers during non-school hours or for a
short period after completing high school but prior to entering other
employment as a vocation, or (2) older persons whose main source of livelihood
is from other means.
·
Employment in
babysitting services would usually be on a “casual basis,” whether performed
for one or more employees, if such employment by all such employers does not
exceed 20 hours per week in the aggregate. Employment in excess of these hours
may still be on a “casual basis” if the excessive hours of employment are
without regularity or are for irregular or intermittent periods. Employment in
babysitting services shall also be deemed to be on a “casual basis” (regardless
of the number of weekly hours worked by the babysitter) in the case of
individuals whose vocations are not domestic service who accompany families for
a vacation period to take care of the children if the duration of such
employment does not exceed 6 weeks.
·
If the individual
performing babysitting services on a “casual basis” devotes more than 20
percent of his or her time to household work during a babysitting assignment,
the exemption for “babysitting services on a casual basis” does not apply
during that assignment and the individual must be paid in accordance with the
Act's minimum wage and overtime requirements. This does not affect the
application of the exemption for previous or subsequent babysitting assignments
where the 20 percent tolerance is not exceeded.
·
Individuals who engage
in babysitting as a full-time occupation are not employed on a “casual basis.”
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.
