by Juliet Burgess and Emily Brodner, Burgess Law Group

With the demand for homecare services continuously growing, in-home caregivers have become an integral part of the healthcare industry. However, under an exemption in the Fair Labor Standards Act (FLSA), these caregivers may not be entitled to the Act’s wage and overtime protections.

FLSA basics

Generally, the FLSA requires that employers pay all nonexempt employees at least the federal minimum wage for all hours worked in a workweek and overtime pay of not less than time and one-half an employee's regular rate for time worked over 40 hours in a workweek. The FLSA also provides exemptions from both minimum wage and overtime pay for employees meeting certain criteria (i.e., bona fide executive, administrative, professional, and outside sales employees; certain computer employees; etc.).

The law also exempts certain domestic service workers from its minimum wage and overtime provisions. Indeed, employers of casual babysitters and domestic service workers who provide “companionship services” for an elderly person or a person with an illness, an injury, or a disability aren’t required to pay minimum wage or overtime pay, provided certain regulatory requirements are met.

Companionship services exemption

The FLSA defines “companionship services” as the provision of fellowship and protection for elderly persons or persons with an illness, an injury, or a disability who need help caring for themselves.

Companionship services also include the provision of care, so long as it’s provided concurrently with the provision of fellowship and protection and doesn’t exceed 20% of the worker’s total hours worked per workweek.

2013 revision

The Department of Labor (DOL) revised the exemption in 2013, significantly limiting its scope. Initially, this exemption was established on the premise that such work was similar to casual babysitting rather than professional employment. But the evolution of home health care and the demand for such services because of an aging population necessitated a change in perspective.

The most significant change was that third-party employers, such as home healthcare staffing agencies, could no longer claim the companionship services exemption. This revision made many more caregivers eligible for minimum wage and overtime protections.

However, private households can still use this exemption in certain situations. If a family or an individual directly hires a caregiver for a family member and that caregiver primarily provides fellowship and protection, the companionship services exemption may apply.

Fellowship, protection, and provision of care

The term “companionship services” focuses on the provision of fellowship and protection. “Fellowship” involves engaging the person in social, physical, and mental activities, such as conversation, reading, games, crafts, walks, and accompaniment to appointments or social events. “Protection” involves monitoring the person's safety and well-being.

Additionally, companionship services may include providing “care” in certain circumstances. Care refers to assisting a person with daily living activities (such as dressing, grooming, feeding, bathing, toileting, and transferring) or instrumental activities of daily living that enable a person to live independently at home. Instrumental activities may include meal preparation, driving, light housework, managing finances, assisting with medications, and arranging medical care.

Defining the limits

It’s important to note that caregivers who spend more than 20% of their workweek providing “care” or “assistance with daily living activities” don’t fall under the exemption, so they must be paid at least the federal minimum wage and receive overtime pay for any hours worked over 40 each workweek.

Moreover, the companionship services definition doesn’t include household work that primarily benefits other household members rather than the person they’re directly assisting. For example, performing household work such as making dinner for the entire family or doing laundry for another household member results in a loss of the exemption, and the caregiver is entitled to minimum wage and overtime pay for that week.

Lastly, the term companionship services doesn’t include providing medically related services typically performed by trained personnel. The exemption excludes caregivers who perform these services, and therefore, the minimum wage and overtime pay requirements apply to all hours worked that workweek.

Conclusion

Given the FLSA’s framework, whether in-home caregivers are exempt will depend on the facts of each employment relationship and the work actually performed by the in-home worker. For example, caregivers employed by third-party organizations, such as home healthcare agencies, are typically not exempt from the FLSA’s minimum wage and overtime protections.

On the other hand, the exemption may apply to caregivers directly hired by families or individuals, but the specifics of their work duties are crucial in determining the exemption’s applicability.

Generally, if an in-home caregiver is hired to provide companionship services, including the provision of care, fellowship, and protection, and the provision of care doesn’t exceed 20% of the total hours worked per consumer and per workweek, the exemption will apply.

Even under those circumstances, however, the exemption doesn’t apply if the caregiver provides household work that primarily benefits other household members or performs medically related services typically performed by trained medical personnel.

For more information, please see Fact Sheet #79(A) from the Wage and Hour Division (WHD) of the DOL: https://www.dol.gov/agencies/whd/fact-sheets/79a-flsa-companionship.

Emily Brodner is a third-year law student at the University of Arizona, James E. Rogers College of Law. Juliet S. Burgess is the founding partner of the Burgess Law Group, specializing in labor and employment law and commercial litigation. For more information, please visit www.theburgesslawgroup.com.