On September 17, 2013, the U.S. Department of Labor (“DOL”) issued a Final Rule which narrows the companionship exemption to the Fair Labor Standards Act (“FLSA”) and extends the FLSA’s minimum wage and overtime protections to in-home health care workers. The regulations go into effect on January 1, 2015. The delay is designed to permit families who rely upon these workers to prepare for the changes. According to the DOL, this Final Rule will affect nearly 2 million workers.

Prior to the issuance of this Final Rule, the FLSA’s minimum wage and overtime requirements did not apply to  domestic service workers who provide “companionship services.” The Final Rule makes three important changes to the rules that govern these exemptions.

Since 1974, the provisions of the FLSA have applied to “domestic service” employees such as cooks, butlers, valets, maids, housekeepers, janitors, governesses, laundresses, caretakers, handymen, gardeners, and family chauffeurs. Three specific types of “domestic service” workers, however, were exempt from the FLSA’s protections; to-wit: (1) causal babysitters, (2) those providing “companionship services” for individuals because age or infirmity left them unable to care for themselves, and (3) domestic service employees who resided in the household.

Now, “companionship services” are defined as fellowship with and protection for an elderly, injured, disabled or sick person who requires assistance in caring for himself or herself. Further, companionship services now also includes “care” if (1) the care is provided attendant to and in conjunction with fellowship and protection, and (2) if the care does not exceed 20 percent of the total hours worked per person per workweek. “Care” is defined as assistance with activities of daily living (feeding, bathing, grooming, etc.) and assistance with daily living activities that enable the person to live independently at home (meal preparation, managing medications, driving, housework).

If an individual spends over 20 percent of his/her time to perform care in any given workweek, the exemption no longer applies and the employee is entitled to minimum wage and overtime. Similarly, if performance of household work primarily benefits other members of the household, or if medically-related tasks are performed (i.e., the care typically requires trained personnel), the employee is also entitled to minimum wage and overtime pay.