Department Of Labor Seeks To Put New FLSA Regulations For Homecare Workers Back On Track

Last week marked a new battle in the war the U.S. Department of Labor (DOL) has waged against the homecare industry. Appealing two federal court rulings that invalidated new regulations extending minimum wage, overtime and travel time pay to thousands of domestic workers in the homecare industry, the DOL argued that a U.S. Supreme Court decision in 2007 effectively endorsed the DOL's authority to change the FLSA regulations, that the homecare industry lacked standing to challenge the new "companionship" regulations, and that the new companionship regulations are a reasonable exercise of its "broad general authority" to issue regulations. If successful, the DOL's appeal would leave the homecare industry with no judicial remedy, other than the U.S. Supreme Court, to challenge these regulations on their merits.

The Regulations

At issue in the DOL's appeal are final regulations that would significantly narrow the exemptions under the FLSA for "companionship" and "live-in" domestic service workers. Historically, the FLSA has expressly exempted from its coverage (i) "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves," 29 U.S.C. §213(a)(15), and (ii) "any employee who is employed in domestic service in a household and who resides in such household." Id. at (b)(21) (only for overtime). Generally, workers fall within one of these exemptions if they satisfy a "duties test." Since 1975, homecare agencies that employed qualifying domestic service workers were expressly able to take advantage of these two exemptions.

The DOL's final regulations, which were scheduled to go into effect on January 1, 2015, would have considerably altered this landscape by, among other things:

Prohibiting homecare agencies from claiming either exemption, even if the homecare worker is jointly employed by an agency and an individual, family, or household using the worker's services. Rather, only the individual recipient of the services could continue to claim an exemption for such workers, providing they satisfy all other applicable criteria; and Limiting the definition of "companionship services" to providing "fellowship," "protection" and less than 20 percent of "care" services out of the total hours in a work week. The 20 percent limitation is new. Provision of "fellowship" services generally means engaging the recipient in social, physical and mental...