As expected, the Department of Labor has issued new rules for home healthcare workers. They provide some long overdue and much needed protection to employees who work in homes of the elderly. Historically, domestic workers who provide “companionship services” have not been protected by the minimum wage and overtime provisions by the Fair Labor Standards Act. This is due to a number o f historic factors, not the least of which is the refusal of Congress in decades past to pay living wages to employees who largely are minorities.
The Department of Labor has extended the protection of these employees. The most significant change is that the so called “companionship exemption” can only be claimed by individuals. In other words, multi-billion dollar companies who contract to provide in home healthcare can no longer get away with refusing to pay minimum wage and overtime to their employees.
Second, the tasks that are considered “companionship” have become significantly limited. “Companionship” is now defined as providing fellowship and protection for an elderly person or a person with a illness, injury or disability who requires assistance in caring for himself or herself. For example, companionship services include conversation, reading, games, crafts, accompanying personal walk, etc. “Companionship services” can also include the provision of “care” if the care is provided in conjunction with fellowship and protection and does not exceed more than 20% of the total work week. “Care” includes assistance with daily activities, such as dressing, grooming, feeding, bathing, toileting, and transferring. In other words, if a person spends more than 20% of his time actively assisting the person with their daily activities, then they cannot be exempt. Further, performance of household work that primarily benefits other members of the household or the performance of medically related tasks result in the loss of an exemption. Therefore, a housekeeper would not qualify for the companionship exemption.
Finally, the record keeping requirements are expanded so that employers must keep accurate time records for live in domestic service employees.
To give employers an opportunity to come into compliance, the new rules do not take affect until January 1, 2015. Nevertheless, these are important rules that will primarily prevent large corporations from taking advantage of an exemption that was intended to benefit the elderly who were paying “companions” out of their own pocket.