In 1974, when Congress expanded the protections of the Fair Labor Standards Act of 1938 to “domestic service” workers, it also created a limited exemption from the minimum wage and overtime requirements for companions for the aged and infirm. Back then, Congress envisioned those who would fall within the companionship exemption as neighbors helping the elderly.
But since that time, a growing demand for long-term in-home care has spawned substantial growth in the in-home care service industry. These workers are no longer compassionate neighbors, but instead professional caregivers employed by third-party employers rather than family members. As a result, the Department of Labor has proposed changes to the companionship regulations that would limit the exemption’s scope and more clearly define tasks that an exempt companion could perform. The proposed charges are:
• First, the amendments would limit the exemption to workers employed by the individual, family, or household, and would disallow use of the exemption by third-party employers, such as home health-care agencies.
• The amendments would also limit a companion’s duties to fellowship and protection (e.g., playing cards, watching television together, visiting with friends and neighbors, taking walks, engaging in hobbies).
• And they would only allow for certain incidental personal care services (e.g., occasional dressing, grooming, driving to appointments) if the incidental activities did not consume more than 20% of the companion’s time.
The Department of Labor believes that the amendments will create better standards of living for companion workers, more jobs, and less turnover in the in-home care service industry that will lead to a better quality of care. For third-party employers, the amendments will mean the payment of minimum wages and overtime pay, or the threat of litigation. If you need more information on this subject, contact Brad Smelser, a lawyer in our firm, at 800-898-2034 or by email at Brad.Smelser@beasleyallen.com.
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