Obama Directs DOL to Expand FLSA to Cover In-Home Care Workers

“President Obama announces a new rule that will ensure in-home care workers are included in the same minimum wage and overtime protections afforded to other workers under the Fair Labor Standards Act.”

Last year the California legislature failed to pass legislation that would have added substantial burdens to families hiring home workers, including personal attendants or other in-home care providers.  President Obama is taking credit for newly proposed Department of Labor regulations modifying overtime and minimum wage requirements for in-home care workers.  The DOL previously attempted to make similar changes in 1993 and again in 2001, but those rules never became formalized.

A copy of the currently proposed regulations can be downloaded here. To save you the time of having to read the 186-page document, I’ve summarized the proposed changes below.  The new regulations would not take affect until after the public is allowed the opportunity to comment on the proposed changes.

Current regulations provide an exemption from the FLSA for in-home companions.  Like babysitters, the in-home companions care for the elderly or infirm and are typically employed by the household or family as opposed to a third-party employer.  There are a number of regulations defining what a “companion” can or cannot do and still remain exempt from the overtime and minimum wage obligations of the FLSA.  The new regulations make it clear that a companion is someone who provides fellowship and protection, but does not perform general household work.  The legislative history uses the example of a neighbor who comes over to help with grandma or grandpa.

Under the new regulations, an exempt companion can:

  • Occasionally help the elderly person get dressed or undressed, but this cannot be a part of the regular duties.
  • Occasionally assist the elderly person with grooming including combing and brushing hair, assistance with brushing teeth, applying deodorant or washing face/hands following a meal.
  • Assist the elderly person with using the toilet or changing diapers.
  • Occasionally driver the elderly person to appointments, but this cannot be a part of the regular duties (the regulations suggest the companion should typically accompany the elderly person using a taxi or public transportation).
  • Cook meals so long as the meals are going to be eaten by the elderly person while the companion is there (e.g., no more preparing a week of meals at a time) and is not to be eaten by other members of the household.
  • Do some “light laundry” for the elderly person (but not for others), which can include putting clothes in the washer or dryer and assisting the elderly person with putting away or folding the clothes.
  • Occasionally assisting with bathing, but this cannot be a part of the regular duties.
  • Provide reminders of medical appointments or a predetermined medicinal schedule (e.g., provide pills out of a presorted pill box)

Under the new regulations a companion cannot:

  • Do household chores for the benefit of other household members.
  • Vacuum, wash windows, dust or other similar “housekeeping” chores.
  • Provide medical care such as changing bandages, taking vital signs, evaluating health or other diagnostic or medically-related tasks (pulse, blood sugar, respiration, temperature) – The DOL is requesting comments on whether companions should be allowed to apply band-aids.
  • Determine whether prescription medications need to be taken.

The new regulations make it clear that third-party employers (e.g., agencies) cannot take advantage of the exemption.  Even if the if agency is a joint employer with the family/household member, the employee must received federal minimum wage and overtime.  The definition of what constitutes family or household member for the purposes of determining the employer includes “an individual who is a child, niece, guardian or authorized representative, housemate, or person acting in loco parentis to the elderly or infirm individual needing companionship or live-in services.”

The new regulations also change the record-keeping requires for live-in domestic workers.  Currently employers can avoid formal pay records for domestic live-in domestic workers if the parties have an agreement setting forth the agreed upon work hours with notifications for any deviations from the standard hours.  The DOL has determined that such lax record-keeping is no longer sufficient, and that even live-in domestic workers will be required to turn in accurate records of the actual hours worked, and employers are required to maintain those records as specified in the Act.  It is my understanding that companions employed by the family/household, regardless of whether they are live-in companions or not, will not have to keep records of hours worked, but that is not entirely clear.  Companions employed by third-parties will have to keep accurate records of hours worked.

If you are interested in submitting your comments to the DOL regarding the proposed changes, you will eventually be able to log onto http://www.regulations.gov and search for RIN 12350AA05.  When I searched for it today, it was not available, likely because the regulations are not yet ready for public comment.

If you or someone you know uses, employs or works with companions or other domestic workers, familiarize yourself with the proposed regulations and submit your comments.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
 
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
 
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