Application of the Fair Labor Standards Act to Domestic Service [10/1/2013]

For the complete article, please visit http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=27104&AgencyId=14&DocumentType=2.

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 552

RIN 1235-AA05

Application of the Fair Labor Standards Act to Domestic Service

AGENCY: Wage and Hour Division, Department of Labor

ACTION:      Final Rule

SUMMARY: In 1974, Congress extended the protections of the Fair Labor Standards Act (FLSA or the Act) to “domestic service” employees, but it 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, and it exempted from the Act’s overtime provision domestic service employees who reside in the household in which they provide services. This Final Rule revises the Department’s 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. Most significantly, the Department is revising the definition of “companionship services” to clarify and narrow the duties that fall within the term; in addition third party employers, such as home care agencies, will not be able to claim either of the exemptions. The major effect of this Final Rule is that more domestic service workers will be protected by the FLSA’s minimum wage, overtime, and record keeping provisions.

DATES: This regulation is effective January 1, 2015.

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). Copies of this Final Rule may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0675 (not a toll-free number). TTY/TTD callers may dial toll-free (877) 889­5627 to obtain information or request materials in alternative formats.

Questions of interpretation and/or enforcement of the agency’s current regulations may be directed to the nearest Wage and Hour Division (WHD) District Office. Please visit http://www.dol.gov/whd for more information and resources about the laws administered and enforced by WHD. Information and compliance assistance materials specific to this Final Rule can be found at: www.dol.gov/whd/homecare. You may also call the WHD’s toll-free help line at (866) 4US-WAGE ((866)-487-9243) between 8:00 a.m. and 5:00 p.m. in your local time zone.

SUPPLEMENTARY INFORMATION:

Table of Contents

  1. Executive Summary
  2. Background
  • Summary of Comments on Changes to FLSA Domestic Service Regulations
  1. Section 552.3 (Domestic Service Employment)
  2. Section 552.6 (Companionship Services)
  3. Section 552.102 (Live-In Domestic Service Employees) and Section 552.110 (Recordkeeping Requirements)
  4. Section 552.109 (Third Party Employment)
  1. Other Comments
  2. Effective Date
  3. Paperwork Reduction Act
  4. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)
  • Final Regulatory Flexibility Analysis
  • Unfunded Mandates Reform Act
  1. Executive Order 13132 (Federalism)
  2. Executive Order 13175 (Indian Tribal Governments)
  3. Effects on Families
  • Executive Order 13045 (Protection of Children)
  • Environmental Impact Assessment
  • Executive Order 13211 (Energy Supply)
  1. Executive Order 12630 (Constitutionally Protected Property Rights)
  • Executive Order 12988 (Civil Justice Reform Analysis)

List of Subjects in 29 CFR part 552

Signature

Amendments to Regulatory Text

  1. EXECUTIVE SUMMARY

Purpose of the Regulatory Action

Prior to 1974, the FLSA’s minimum wage and overtime compensation provisions did not

protect domestic service workers unless those workers were employed by enterprises covered by the Act (generally those that had at least a certain annual dollar threshold in business, see 29U.S.C. 203(s)). Congress amended the FLSA in 1974 to extend coverage to all domestic serviceworkers, including those employed by private households or companies too small to be coveredby the Act. See Fair Labor Standards Amendments of 1974, Pub. L. 93-259 § 7, 88 Stat. 55, 62 (1974). At the same time, Congress created an exemption from the minimum wage and overtime compensation requirements for domestic service workers who provide companionship services and an exemption from the Act’s overtime compensation requirement for domestic service workers who reside in the households in which they provide services, i.e., live-in domestic service workers. Id.; 29 U.S.C. 13(a)(15), 13(b)(21).1 The new statutory text explicitly granted the Department the authority to define the terms “domestic service employment” and “companionship services.” See 29 U.S.C. 213(a)(15).

The legislative history of the 1974 amendments explains that the changes were intended to expand the coverage of the FLSA to include all employees whose vocation was domestic service, but to exempt from coverage casual babysitters and individuals who provided companionship services. The “companionship services” exemption was to apply to “elder sitters” whose primary responsibility was to watch over an elderly person or person with an illness, injury, or disability in the same manner that a babysitter watches over children. See 119 Cong. Rec. S24773, 524801 (daily ed. July 19, 1973) (statement of Sen. Williams). The companionship services exemption was not intended to exclude “trained personnel such as nurses, whether registered or practical,” from the protections of the Act. See Senate Report No. 93-690, 93rd Cong., 2d Sess., p. 20 (1974); House Report No. 93-913, 93rd Cong., 2d Sess., p. 36 (1974).

In 1975, the Department promulgated regulations implementing the companionship services and live-in domestic service employee exemptions. See 40 FR 7404 (Feb. 20, 1975); 29 CFR

Congress simultaneously also created an exemption from the Act’s minimum wage and overtime requirements for domestic service employees “employed on a casual basis … to provide babysitting services.” 29 U.S.C. 213(a)(15). This rulemaking does not make, nor did the proposal it follows suggest, changes to the Department’s regulations regarding the babysitting exemption.

part 552. These regulations defined companionship services as “fellowship, care, and protection,” which included “household work … such as meal preparation, bed making, washing of clothes, and other similar services” and could include general household work not exceeding “20 percent of the total weekly hours worked.” 29 CFR 552.6. Additionally, the 1975 regulations permitted third party employers, or employers of home care workers other than the individuals receiving care or their families or households, to claim both the companionship services and live-in domestic service employee exemptions. 29 CFR 552.109. These regulations have remained substantially unchanged since they were promulgated.

The home care industry, however, has undergone dramatic expansion and transformation in the past several decades. The Department uses the term home care industry to include providers of home care services, and the term “home care services” to describe services performed by workers in private homes and whose job titles include home health aide, personal care attendant, homemaker, companion, and others.

In the 1970s, many individuals with significant care needs were served in institutional settings rather than in their homes and their communities. Since that time, there has been a growing demand for long-term home care for persons of all ages, largely due to the rising cost of traditional institutional care and, in response to the disability civil rights movement, the availability of federal funding assistance for home care, reflecting the nation’s commitment to accommodate the desire of individuals to remain in their homes and communities. As more individuals receive services at home rather than in nursing homes or other institutions, workers who provide home care services, referred to as “direct care workers” in this Final Rule but employed under titles including certified nursing assistants, home health aides, personal care aides, and caregivers, perform increasingly skilled duties. Today, direct care workers are for themost part not the elder sitters that Congress envisioned when it enacted the companionship services exemption in 1974, but are instead professional caregivers.

Despite this professionalization of home care work, many direct care workers employed by individuals and third-parties have been excluded from the minimum wage and overtime protections of the FLSA under the companionship services exemption, which courts have read broadly to encompass essentially all workers providing services in the home to elderly people or people with illnesses, injuries, or disabilities regardless of the skill the duties performed require. The earnings of these workers remain among the lowest in the service industry, impeding efforts to improve both jobs and care. The Department believes that the lack of FLSA protections harms direct care workers, who depend on wages for their livelihood and that of their families, as well as the individuals receiving services and their families, who depend on a professional, trained workforce to provide high-quality services.

Because the 1975 regulations define companionship services and address third-party employment in a manner that, given the changes to the home care services industry, the home care services workforce, and the scope of home care services provided, no longer aligns with Congress’s intent when it extended FLSA protections to domestic service employees, the Department is modifying the relevant regulatory provisions in 29 CFR part 552. These changes are intended to clarify and narrow the scope of duties that fall within the definition of companionship services in order to limit the application of the exemption. The Department intends for the exemption to apply to those direct care workers who are performing “elder sitting” rather than the professionalized workforce for whom home care is a vocation. In addition, by prohibiting employers of direct care workers other than the individual receiving services or his or her family or household from claiming the companionship services or live-in domestic service employment exemptions, the Department is giving effect to Congress’s intent in 1974 to expand coverage to domestic service employees rather than to restrict coverage for a category of workers already covered.

For the complete article of the DOL’s Final Rule, please visit the DOL’s website http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=27104&AgencyId=14&DocumentType=2 .

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