On December 15, 2011, the Department of Labor's Wage and Hour Division ("WHD") proposed regulations that would extend the Fair Labor Standard Act's ("FLSA") overtime and minimum wage provisions to in-home caregivers currently exempt under that law. According to the WHD, the proposed regulations would apply to nearly two million workers who provide "in-home care services for the elderly and infirm." The proposed regulations include four principal changes.

Narrow Definition of "Companionship Services"
The proposed regulations would restrict the exemption the FLSA currently extends to employees providing "companionship services" by defining the term "companionship services" to mean only "fellowship" and "protection." Fellowship would include activities such as playing cards, taking walks and visiting. Protection would mean to be present with the person in their home or to accompany them outside of the home to monitor the person's well-being or safety. "Companionship services" also would include intimate personal care services that are incidental to the provision of fellowship and protection for an aged or infirm person, but must not exceed 20 percent of the total hours worked in the workweek. Moreover, "companionship services" would not include medical care that is typically provided by a person with specialized training. In sum, workers who provide services that do not fall within the new definition of "companionship services" will be subject to the FLSA's minimum wage and overtime provisions.

Limitation of Tasks Considered "Incidental Intimate Personal Care"
Under the proposed regulations, for an employee to fit within the "companionship services" exemption, he or she may not perform tasks that benefit all members of the household. The proposed regulation specifies that, while "companionship services" may include "incidental intimate personal care" not exceeding 20 percent of the total hours worked, "incidental intimate personal care" only includes services that assist the person for whom the care is being provided — performing general household work, such as cleaning, laundry or preparing meals for the entire household, will not be covered by the "companionship services" exemption.

Third-Party Employers Not Entitled to Claim Exception
The proposed regulations state that third-party employers who supply employees to provide "companionship services," such as in-home staffing agencies, would not be entitled to claim the exemption for their workers under any circumstances. Instead, only the aged or infirm person (or family members) who directly employs an in-home worker can claim the exemption, and even then only to the extent the worker performs tasks that fall within the restricted definition of "companionship services."

Employer Required to Document Hours Worked
The proposed regulations would change the recordkeeping requirement for employers of live-in domestic service caregivers. The proposed regulations define "domestic service employment" as "services performed by an employee in or about a private home," and include "services performed by employees such as companions, babysitters, cooks, waiters, butlers, valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, gardeners, home health aides, personal care aides and chauffeurs of automobiles for family use." For purposes of live-in employees who perform domestic services, the current regulations permit the employer to show a copy of the employment agreement as proof of the hours worked by such an employee, however, the proposed regulations would require the employer to keep an actual record of the hours worked by all live-in domestic employees other than casual babysitters.

The WHD invited comments on the proposed regulations, which must be submitted by February 27, 2012. The comments should be identified by RIN 1235-AA05, and may be sent electronically at http://www.regulations.gov.