On September 18, 2013, the U.S. Department of Labor’s (DOL) Wage and Hour Division released its final regulation, which extends minimum wage and overtime protections under the Fair Labor Standards Act (FLSA) to domestic service workers. This regulation defines the types of services a domestic service worker can perform before being subject to minimum wage and overtime protections. As of January 1, 2015, many domestic service workers, such as certified nursing assistants, home health aides, and other caregivers will be protected by the FLSA.
Previously, employers that hired domestic service workers to provide services to elderly persons or persons with illnesses, injuries, or disabilities were not required to provide these workers with minimum wage or overtime. When the new regulation takes effect, the FLSA will extend minimum wage and overtime protections to an estimated two million workers in the industry.
The regulation itself requires a family or household to provide FLSA protections to domestic service workers where the “provision of care” given by the worker is in excess of 20% of his or her total hours worked in a workweek. Provision of care is defined as assisting the person with activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring). In addition, it includes instrumental activities of daily living, which are tasks that enable a person to live independently at home (for example, meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care).
In order for a family or household to be exempt from FLSA obligations, the provision of care must be limited to fellowship and protection. Fellowship services are “social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events.” Protection services require monitoring the safety and well being of the person receiving care in the home or when he/she requires accompaniment outside of the home. According to the DOL’s Fact Sheet, an employer is mandated to provide FLSA protections to his/her workers if the workers typically need to undergo training in order to administer the type of medical services they provide.
The DOL’s stated reason behind the narrowed definition of services is a result of tremendous growth in the home care industry over recent years and the fact that domestic service workers are among the lowest paid in the service industry. According to the DOL, these low wages interfere with efforts to improve both jobs and care. In light of this, the DOL released this regulation “in large part to narrow the companionship services exemption to apply only to the types of workers Congress intended to fall outside the scope of the FLSA.”
For more information on the new rule, please see DOL’s frequently asked questions page and the new web portal containing basic information on the new requirements.