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DOL final rule extends FLSA protections to home care workers

September 17th, 2013  |  Pamela Wolf

On September 17, the DOL released its final rule extending FLSA minimum wage and overtime protections to most of the nation’s workers who provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. As a result of the new rule, nearly two million direct care workers, including home health aides, personal care aides, and certified nursing assistants, will now receive the same basic protections already provided to most U.S. workers.

The DOL points out the regulatory change will also help guarantee that those who rely on the assistance of direct care workers will have access to consistent and high-quality care from a stable and increasingly professional workforce. The final rule is effective January 1, 2015.

Changes prompted by industry developments. In 1974, Congress extended the protections of FLSA to “domestic service” employees, but exempted from the Act’s minimum wage and overtime provisions domestic service employees who provide “companionship services” to elderly people or people with illnesses, injuries, or disabilities who require assistance in caring for themselves. It also exempted from the Act’s overtime provision domestic service employees who reside in the household in which they provide services.

The DOL’s final rule revises its 1975 regulations implementing these amendments to the Act to better reflect Congressional intent given the changes to the home care industry and workforce since that time. The most significant change is the DOL’s revision of “companionship services” to clarify and narrow the duties that fall within the term. Moreover, third party employers, such as home care agencies, will not be able to claim either of the exemptions. The major effect of this the final rule is that more domestic service workers will be protected by the FLSA’s minimum wage, overtime, and recordkeeping provisions.

The last several decades have seen dramatic growth in the home care industry as more individuals choose long-term care at home instead of in nursing homes or other facilities, the DOL noted in a statement. However, despite this growth and the fact that direct care workers increasingly receive skills training and perform work previously done by trained nurses, direct care workers remain among the lowest paid in the service industry.

The final rule also clarifies that direct care workers who perform medically related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime. Moreover, consistent with Congress’ initial intent, individual workers who are employed only by the person receiving services, or that person’s family or household, and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

There are about 1.9 million direct care workers in the United States, nearly all of whom are currently employed by home care agencies, according to the DOL. An estimated 90 percent of direct care workers are women, and nearly 50 percent are minorities.
“The department carefully considered the comments received from individuals who receive home care, workers, third-party employers and administrators of state programs that support home care,” said Laura Fortman, the principal deputy administrator of the Wage and Hour Division, the agency that administers and enforces the FLSA. “In response, the final rule provides increased flexibility, and gives programs sufficient time to make any needed adjustments. Together these changes will allow the rule to better meet consumers’ needs while better protecting direct care workers.”

Sub-regulatory guidance. In conjunction with the release of the final rule, the DOL has issued sub-regulatory guidance, including a frequently asked questions (FAQ) document and a series of fact sheets addressing topics such as the application of the final rule; private home and domestic service employment under the FLSA; companionship services under the FLSA; live-in domestic service workers under the FLSA; and hours worked applicable to domestic service employment under the FLSA. A new web portal includes all of these documents as well as interactive web tools and other materials to help families, other employers and workers understand the new requirements.

Webinars. The DOL will also be offering five webinars on the final rule, to be held at the following locations:

  • Thursday, October 3: Northeast Region (ME, NH, VT, MA, RI, CT, NY, PA, NJ, DE, MD, DC, VA, WV, PR), 3:00-4:30 ET;
  • Tuesday, October 8: Western Region (AZ, NV, CA, OR, WA, ID, HI, AK), 10:00-11:30 PT;
  • Thursday, October 10 Midwest Region (OH, MI, IN, IL, WI, MN, IA, MO, NE, KS), 1:00-2:30 CT, 2:00-3:30 ET
  • Tuesday, October 15: Southeast Region (KY, TN, NC, SC, GA, FL, AL, MS), 9:00-10:30 CT, 10:00-11:30 ET
  • Thursday, October 17: Southwest/Mountain Region (LA, TX, AR, OK, NM, CO, WY, UT, MT, ND, SD), 1:00-2:30, MT; 2:00-3:30 CT

Registration will information will be available on the webinar webpage shortly.

Further information. For further information, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, U.S. Department of Labor, Wage and Hour Division, 200 Constitution Avenue, NW., Room S-3502, FP Building, Washington, D.C., 20210; telephone: (202) 693-0406 (this is not a toll-free number).