On September 17, 2013, the Department of Labor's Wage and Hour Division (WHD) issued a Final Rule that extends the Fair Labor Standard Act's (FLSA) overtime and minimum wage provisions to many currently exempt in-home caregivers, updating its regulations at 29 C.F.R. Part 552. The WHD stated the change will result in nearly two million direct care workers, including personal care aides, health aides and certified nursing assistants, receiving protections under the FLSA. The Final Rule takes effect on January 1, 2015.

The WHD issued the proposed regulations in December of 2011; you can read our previous advisory about these regulations here. The Final Rule adopts the four major changes under the proposed regulations. Specifically, the new regulations:

  1. Narrow the current FLSA exemption for “companionship services” by defining the term to mean only those who provide “fellowship" and "protection” for an elderly person or a person with an illness, injury or disability who requires assistance in caring for himself or herself;
  2. Define “fellowship” to mean engage the person in social, physical and mental activities, and define “protection” to mean being present with the person in their home or to accompany them outside of the home to monitor their safety and well-being;
  3. Provide that “companionship services” include the provision of care (assistance with activities of daily living) but only if it is attendant to providing fellowship or protection and does not exceed more than 20 percent of the hours worked per person per workweek; however, the term now expressly excludes those individuals who (a) primarily perform tasks that benefit all members of the household, or (b) who perform medically related services;
  4. Prohibit third-party employers who supply employees from relying on the “companionship services” exemption for their workers; and
  5. Require employers to keep a record of the hours actually worked by all live-in domestic employees other than casual babysitters, rather than simply showing an employment agreement that describes the hours to be worked.

For more information, see the U.S. Department of Labor’s Frequently Asked Questions, which can be found at http://www.dol.gov/whd/homecare/faq.htm, and the Department’s new Fact Sheet, which can be found at http://www.dol.gov/whd/regs/compliance/whdfsFinalRule.htm.