Earlier this week, information with respect to the DOL’s Final Rule regarding FLSA protection to home health care workers, and specifically the “companionship service” exemption, was provided. Let’s now take a look at other changes ushered in by the Final Rule.

Now, live-in domestic service workers who reside in the employer’s home and are employed by an individual, family or household are exempt from any overtime pay requirement, although they must be paid at least the federal minimum wage for all hours worked. Employers may enter into agreements with workers to exclude certain time from compensable hours, such as time spent sleeping or eating. Employers with live-in domestic service employees are now required to keep accurate records of hours worked by the employees.

It is important to note that live-in domestic service workers who are solely or jointly employed by a third party (i.e., home care companies or agencies) must be paid at least the federal minimum wage and overtime pay for all hours worked by that third party employer.

The extension of FLSA protection is largely the result of advocates of low-wage workers pushing for change. According to advocates, home care workers who care for elderly and disabled Americans have for far too long been misclassified into the same “companionship services” category as baby sitters.

Opponents of the Final Rule worry that recipients of home health care services will no longer be able to afford care and may be forced into assisted living facilities or nursing homes, which provide more costly services.

Home health service employers and staffing agencies should inform employees and recipients of services of these changes. As always, not only should the employer know and understand the applicable federal laws, but also the applicable state laws governing minimum wage and overtime protection.