Members of both the House and Senate have introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Among other things, the Direct Care Job Quality Improvement Act (H.R. 2341, S. 1273) would limit the “companionship services” FLSA exemption to those who work fewer than 5 hours per week or are employed in this capacity for fewer than 12 weeks per calendar year.
Section 213(a)(15) of the FLSA exempts from minimum wage and overtime requirements “any employee employed on a casual basis in domestic service employment to provide babysitting services or 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.” In 2007, the U.S. Supreme Court in Long Island Care at Home, Ltd. v. Coke upheld the application of this exemption to home care workers. The Direct Care Job Quality Improvement Act would redefine “casual basis” in domestic service employment to provide companionship services to mean: “employment which is irregular or intermittent, and which is not performed by an individual (1) whose vocation is the provision of companionship services; or (2) who is employed by an employer or agency other than the family or household using the services of such employer or agency.” The bill further states that “[e]mployment is not on a casual basis if any family or household employer employs an individual performing companionship services for more than five (5) hours per week or has employed the individual for a time period that has extended beyond twelve (12) weeks in a calendar year.”
In other words, any direct care worker such as nursing aide, home health aide, or personal and home care aide who works more than 5 hours per week or is employed by the individual needing care for longer than 12 weeks per year would be entitled to minimum wage and overtime pay.
The bill would also, among other things, direct the Department of Health and Human Services (HHS) to establish a direct care workforce monitoring program to facilitate data collection about the direct care workforce.
The DOL has stated its intent to propose regulations that would modify the FLSA’s companionship services exemption, but has not yet done so. During a web chat conducted in January of this year by the DOL’s Wage and Hour Division (WHD) to discuss the department’s regulatory agenda, WHD Deputy Administrator Nancy Leppink said that a notice of proposed rulemaking (NPRM) on this topic is not scheduled to be issued until October of 2011. It is not certain whether the DOL will adhere to this timeline.
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