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LEGAL: Weighing in on minimum wage and overtime changes for home care workers

Jeff Jones
Wednesday, Dec 4, 2013

The U.S. Department of Labor’s Wage and Hour Division announced a final rule Sept. 16 extending the Fair Labor Standards Act’s minimum wage and overtime protections to most of the nation’s direct care workers who provide essential home care assistance to elderly people and people with illnesses, injuries, or disabilities. This change, effective Jan. 1, 2015, ensures that nearly two million workers – such as home health aides, personal care aides, and certified nursing assistants – will have the same basic protections already provided to most U.S. workers. It will help ensure that individuals and families who rely on the assistance of direct care workers have access to consistent and high quality care from a stable and increasingly professional workforce.

There are three significant changes from the prior regulations, including: (1) the tasks that comprise “companionship services” have been more narrowly defined; (2) the exemption from minimum wage and overtime for companionship services and the exemption from overtime for live-in domestic services are no longer available for such workers when employed through a third party such as a home care agency; and (3) the recordkeeping requirements for employers of live-in domestic service employees are revised.

Under the new regulations, companionship services is defined as 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.” No more than 20 percent of the worker’s time can be spent in providing “care” services such as dressing, grooming, feeding, bathing, toileting, meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications and arranging medical care. Household work that primarily benefits other members of the household, such as making dinner for another household member or doing laundry for everyone in the household, results in the loss of the companionship exemption, thus entitling the employee to minimum wage and overtime pay for that workweek.

Companionship services does not include the provision of medically related services that are typically performed by trained personnel such as registered nurses, licensed practical nurses or certified nursing assistants. Performance of medically related tasks during the workweek results in loss of the exemption and the employee is entitled to minimum wage and overtime pay for that workweek.
The revised regulations also prohibit third party employers of direct care workers (such as home care staffing agencies) from claiming the exemption for companionship services or the exemption for live-in domestic service employees. Third party employers may not claim either exemption even when the employee is jointly employed by the third party employer and the individual, family or household using the services.

In the case of live-in domestic service workers, the employer will be required to keep a written copy of any agreement to exclude the amount of time spent during a bona fide meal period, sleep period and off-duty time from hours worked. Additionally, the employer must track and record all hours worked by the domestic service worker, including live-in workers, and the worker must be compensated for all hours actually worked notwithstanding the existence of an agreement.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.


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