The U.S. Department of Labor (DOL) plans to review the companionship exemption to the Fair Labor Standards Act (FLSA), according to the latest DOL regulatory agenda.
Page 15 of the agenda (pdf) indicates that a proposed rule is likely to be issued for comment by October 2011.
Since 1975, the companionship exemption to the FLSA has explicitly prevented home care workers from receiving guaranteed minimum wage and overtime protections.
The DOL’s latest agenda, however, states that “in light of significant changes in the home care industry,” the DOL will consider examining and perhaps updating the FLSA to include home care workers.
“Home care workers are one of America’s fastest growing workforces — as well as one of the most under-paid and under-protected,” said Steve Edelstein, PHI policy director. “Ending their exclusion from basic wage and hour protections is long overdue. Including this issue in their regulatory agenda represents a first step in the right direction by the DOL.”
Review Process
The DOL’s next step in reviewing the companionship exemption will take the form of outreach meetings for stakeholders, including home care providers, home care workers, consumers, and advocates for both the elderly and people with disabilities.
Following that, the DOL will publish a proposed ruling in the Federal Register. This ruling will be subject to a public review period, during which stakeholders and other concerned individuals can submit comments.
The DOL will then begin to craft a final ruling, drawing upon the comments from the public.
According to the latest regulatory agenda, the notice of proposed rulemaking (NPRM) is tentatively scheduled for October of next year.
Background on the Companionship Exemption
Passed in 1938, the FLSA guarantees basic wage protections — including a minimum wage and time-and-a-half pay for overtime — for most workers.
But because home care workers are viewed simply as “companions” to elders and people with disabilities, they have remained exempt from the FLSA’s guaranteed protections. The companionship exemption was officially codified in 1975.
The DOL has the authority to overturn the FLSA’s companionship exemption, however. That power was reaffirmed by the Supreme Court in 2007 in its decision in the case Long Island Care at Home v. Evelyn Coke.
Last month, PHI and the Direct Care Alliance launched the Campaign for Fair Pay, a social media campaign calling on the DOL to extend federal wage and overtime protections to home care workers. As a result, the DOL has received ongoing calls via Facebook to end to the companionship exemption.
The National Employment Law Project has also been actively calling for an end to this unfair exclusion.
– by Matthew Ozga
