Minimum Wage and Overtime Extended to Home Health Care Workers

The U.S. Department of Labor recently announced new regulations extending minimum wage and overtime rules, set forth in the Fair Labor Standards Act (the "Act"), to most workers providing home health care services to the elderly and persons with an illness, injury, or disability.

The Act currently provides that "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is exempt from the minimum wage and overtime rules of the Act. § 213(a)(15).

Effective January 1, 2015, however, two significant changes to section § 213(a)(15) will be implemented by regulation. First, third party employers (e.g. home care agencies) of employees engaged in domestic service employment to provide companionship services to such individuals can no longer avail themselves to this exemption. Second, the definition of "companionship services" will be narrowed in order to limit the application of this exemption. For example, workers providing medically related services, such as registered nurses, licensed practical nurses, certified nursing assistants, or other trained personnel, cannot, by definition, be providing "companionship services".

Also, the Act currently provides that "any employee who is employed in domestic service in a household and who resides in such household" is exempt from the overtime rules of the Act. § 213(b)(21). Effective January 1, 2015, however, third party employers of employees engaged in live-in domestic service employment can no longer avail themselves to this exemption. Furthermore, an employer of a live-in employee is required to keep a copy of the agreement between the parties and is responsible for recording and retaining the number of hours worked by the live-in domestic employee.

If you have any questions regarding the U.S. Department of Labor's recent regulations, please contact Ray Rinkol.