In 2013 the Department of Labor announced new regulatory language that substantially limited the scope of the Fair Labor Standards Act’s companionship exemption. Those regulations, of course, were challenged through litigation which remains ongoing, and their implementation by the USDOL was delayed until many months after the original effective date of January 1, 2015. Though the new companionship services regulations have taken effect, pending review by the U.S. Supreme Court, claims brought under the prior regulations continue to work their way through the court system. A federal district court in New Jersey decided one such case last week, finding an FLSA claimant had failed to properly plead that she was not exempt from minimum wage and overtime under the prior version of the exemption.  Simoliuniene v. Estate of Maszer, 2016 U.S. Dist. LEXIS 25953 (D.N.J. Mar. 1, 2016).

In Simoliuniene, the plaintiff was a home care worker employed to care for an elderly woman by the woman’s guardian. She argued that the companionship exemption did not apply to her in part because she performed “meal preparation, bed making, washing of clothes, and other similar services” and that these tasks took up more than 20 percent of her total weekly hours worked in violation of the “20 percent rule” limitation on general household work. The court rejected the plaintiff’s argument and noted that these tasks are “precisely those duties that are covered by the FLSA’s definition of ‘companionship services’ because they consisted of ‘household work related to the care of the aged or infirm person.’” The court distinguished these tasks from “general household work,” and noted that only “general household work” was subject to the then-applicable 20 percent limitation.

Third party employers of home care workers that continue to face claims based on the prior regulations may be able to use the Simoliuniene decision when defending challenges based on performance of meal preparation, bed making, and similar duties for their clients. Under the new regulations, such third party employers no longer can avail themselves of the companionship exemption. Individuals or guardians who employ home care workers classified as companions under the current version of the exemption must take care to determine whether they are performing work that falls within the definition of “companionship services” under the new regulations.