Occupational Health & Safety

Comment Period Opens Dec. 27 on FLSA Home Care Coverage

The proposed rule to extend the Fair Labor Standards Act's minimum wage and overtime provisions would affect nearly 2 million workers who provide in-home care for elderly and infirm individuals, DOL says.

The comment period will open Dec. 27 for the U.S. Department of Labor Wage and Hour Division's Notice of Proposed Rulemaking that would extend the Fair Labor Standards Act's minimum wage and overtime provisions to nearly 2 million workers who provide in-home care services for elderly and infirm individuals. DOL announced Dec. 15 that the NPRM soon would be published, where it will join a logjam of 162 rules -- including 13 from DOL -- that were pending before the Office of Information and Regulatory Affairs (part of OMB) as of mid-December.

The comment period will close Feb. 27, 2012.

DOL's online page where the announcement is posted says the NPRM "will revise the companionship and live-in worker regulations under the Fair Labor Standards Act to more clearly define the tasks that may be performed by an exempt companion, and to limit the companionship exemption to companions employed only by the family or household using the services. In addition, the Department proposes that third party employers, such as in-home care staffing agencies, could not claim the companionship exemption or the overtime exemption for live-in domestic workers, even if the employee is jointly employed by the third party and the family or household."

When Congress expanded FLSA to "domestic service" workers in 1974, its amendments created a limited exemption from minimum wage and overtime pay requirements for casual babysitters and companions for the elderly and infirm and created an exemption from the OT requirement for live-in domestic workers.

"Although the regulations governing exemptions have been substantially unchanged since they were promulgated in 1975, the in-home care industry has undergone a dramatic transformation," according to DOL. "There has been a growing demand for long-term in-home care, and as a result the in-home care services industry has grown substantially. However, the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care. Moreover, the workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. In view of these changes, the Department believes it is appropriate to reconsider whether the scope of the regulations are now too broad and not in harmony with Congressional intent."

A Frequently Asked Questions page about the proposal is available here.

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