Latest on the “Companionship Exemption” Under the Fair Labor Standards Act

On Friday, Sept. 11, the U.S. Department of Labor (DOL) announced that the agency won't bring enforcement actions over a rule extending Fair Labor Standards Act (FLSA) protections to most home care workers until 30 days after the D.C. Circuit issues a mandate making the rule effective. Last month  LeadingAge New York advised members that DOL should be posting whether there will be any delay, either in terms of effective date or enforcement date.

This follows the ruling on Aug. 21, where the U.S. Court of Appeals for the District of Columbia in an unanimous decision upheld a Department of Labor (DOL) rule extending minimum wage and overtime protections under the Fair Labor Standards Act (FLSA) to all companionship services workers employed by third party home care providers. This reversed an earlier ruling by a lower Federal court that said the DOL did not have the authority to make the changes.

As LeadingAge NY has previously reported, in New York State the effects of the new regulations and the Weil decision will be felt principally in relation to overtime pay.  Under New York State law, home care workers must be paid at least minimum wage (and in some areas of the State, a higher rate of pay based on living wage laws or wage parity) plus overtime. However, for these workers, overtime pay is currently calculated under New York regulations, based on the minimum wage rather than the regular rate of pay. The new federal regulations would require that overtime be calculated based on the regular rate of pay.  They would also impose new requirements for live-in cases, including overtime pay for work in excess of 40 hours (rather than 44 hours) and mandate more detailed recordkeeping.

LeadingAge NY will be sending out another survey to members similar to what we sent before to gauge the impact of this change and to steer our advocacy. We will also be hosting a series of webinars as refreshers and to answer more operational questions such as interpretation of joint employment factors, new rules for live-ins and tracking travel time.  

We will continue to keep members posted on additional information as it becomes available.

Contact: Cheryl Udell, cudell@leadingageny.org, 518-867-8871