Hunton Employment & Labor Perspectives

On Friday, August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. Department of Labor’s (“DOL”) 2013 rule extending FLSA overtime and minimum wage protections to employees of home health care agencies who provide “companionship services” or live-in domestic care. The rule modified an exemption that was part of a 1974 amendment to the Fair Labor Standards Act (“FLSA”) that required domestic service workers to receive overtime and minimum wage, but excluded from those requirements employees who provide companionship services or live in the home where they work. Under the 2013 rule, the exemption for companionship services and live-in care only applies to workers employed by individuals or families who are receiving the care, not to employees of third-party home care providers. The 2013 rule also narrowed the definition of companionship services. Specifically, a worker only falls under the companionship exemption if the worker is employed directly by members of a household where the worker provides “fellowship and protection” (i.e. socializing with and monitoring the safety of elderly or infirm people) or if the worker provides daily living assistance, such as dressing and grooming, in conjunction with fellowship and protection, but does not spend more than twenty percent of their time providing such assistance.

On December 22, 2014, the U.S. District Court for the District of Columbia vacated a new U.S. Department of Labor (DOL) regulation, scheduled to take effect on January 1, 2015, which eliminated an exemption from the Fair Labor Standards Act (FLSA) for employees who provide home companionship and live-in domestic services. Home Care Ass'n of Am. v. Weil, No. 14-cv-967 (D.D.C. Dec. 22, 2014). The DOL's new regulation was controversial not only because it reversed years of precedent under the FLSA, but because many questioned whether the DOL had exceeded its authority in promulgating this regulation.