Proposed DOL Rule Would Extend Minimum Wage and Overtime Laws to Home Care Workers

On December 15, 2011, the White House announced that the U.S. Department of Labor’s Wage and Hour Division intends to publish a Notice of Proposed Rulemaking that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services for the elderly and the infirm.
 
Currently, the Fair Labor Standards Act exempts from its minimum wage and overtime provisions workers who provide “companionship services” for individuals who because of age or infirmity are unable to care for themselves. 
 
The proposed rule would limit the definition of “companionship services” to “fellowship” and “protection,” which would include activities such as playing cards, visiting with friends and neighbors, and taking walks. The proposed rule will also clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services. Among other changes, the Department of Labor proposes to amend current regulations pertaining to employment by a third party of companions so that all third party employers would be denied use of the “companionship services” exemption. However, the proposed regulations will continue to allow the individual, family, or household employing the worker’s services to apply the “companionship services” exemption.
 
The proposed rule is expected to be published in the Federal Register in a week to 10 days.