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DOL Publishes Changes to Companionship Exemption Under the Fair Labor Standards Act . (January 19, 2001)

Changes Would Include Elimination of Exemption for Third Party Employers

On January 19, 2001, the Wage and Hour Division, Employment Standards Administration under the Department published a notice of proposed rulemaking and request for comments pertaining to the Fair Labor Standards Act (FLSA) exemption for companionship services. Comments are due on or before March 20, 2001.

Section 12(a)(15) of the Fair Labor Standards Act was amended in 1975 to include an exemption from minimum wage and overtime provisions of domestic service employees employed to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves). The proposed rule not only significantly restricts the exemption due to activities allowed under companionship services, but also excludes the exemption if a third-party (entity other than the recipient or family) employs the worker. The Department of Labor (DOL) states that the exemption to domestic services was a narrowly-tailored exemption created by Congress, one that looked at the activities as similar to babysitting. According to DOL, due to significant changes in the home care and long-term care industries over the last 25 years, workers who provide in-home care (personal care, companion services) who provide assistance with activities of daily living are performing types of duties and working in situations not envisioned when Congress exempted companionship services.

DOL points to the nature of the duties (including administration of medicines) performed by in-home personnel; level of training of these workers; the number of workers due to the demand for long-term care for persons of all ages--in part because of the rising cost of and increasing dissatisfaction with traditional institutional care; and the availability of public funding assistance for in-home care under Medicare and Medicaid as indications of the significant changes in the industry that have occurred since Congress contemplated the exemption. The proposed rule invites comments on three definitions of companionship services, all of which focus on fellowship and protection while limiting domestic activities rendered.

Whatever the specific activity, it must involve personal interaction between the in-home care provider and the care recipient in order for the proposed companionship services exemption to apply.

For a text copy of the proposed rule, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=01-1590-filed.

ANCOR is preparing comments on the DOL's proposed changes to the companionship exemption. If you use this exemption and wish to have it continue, contact Suellen Galbraith at ANCOR by email at sgalbraith@ancor.org.

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