The Companionship Rules Reform: What the DOL rules reform means for home care workers. WWW. NELP.ORG Sarah Leberstein Staff Attorney National Employment Law Project (212) x313

The Companionship Exemption How it came about: Congress extended FLSA protections to domestic workers in 1974, with 2 exceptions: casual babysitters + workers providing companionship services. DOL rules defining companionship turned narrow exception into wholesale carve-out for home care workers. Effect: All/ virtually all home care workers exempted from federal minimum wage and overtime protections. State-level rights: Many states follow federal exemption but 21 states have covered all or some workers under their MW and/or OT laws. What it means for workers: Many workers not paid overtime, or for travel time or overnight hours. High rates of violations of state laws. WWW. NELP.ORG

December 2011: Obama announces proposed revisions to companionship regulations.

WWW. NELP.ORG Revised Rules: 2 Main changes 1.Workers employed by a 3 rd party will be covered by minimum wage & overtime. 2. What counts as exempt “companionship services” much narrower. Exemption will now apply only to workers who primarily provide fellowship & protection. If worker spends more than 20% of weekly work hours per client on assistance with daily activities, or does any general housekeeping or medical tasks, she’s covered by minimum wage & overtime. OLD RULE NEW RULE (2015) All home care workers exempt. Most home care workers covered. Small portion exempt.

Additional change: reform of record-keeping requirements for live-in domestic workers Employers must now keep actual records of the hours worked by domestic service employees. This is an improvement from the current rules, which permit the employer of a live-in domestic worker to have an agreement with the worker about work hours and only requires that the employer track deviations from that agreement. Agreement doesn’t even have to be express or in writing! No particular form of records required, but employer must include certain identifying information about the employee and data about the hours worked and the wages earned. Remember: this requirement only applies to workers who are covered by the FLSA, not workers still subject to the companionship exemption.

Who is exempt? 1.Employed solely by individual or private household Home care agency → not exempt. Home care agency + private household → not exempt. Private household, no intermediary → could be exempt, depending on her duties NOTE: depends on facts of the specific relationship in question. -AND- 2. Worker provides companionship services Spends more than 20% of weekly work hours per client on assistance with ADLs and IADLs? → not exempt. Performs any general housekeeping → not exempt. Performs any medically related services → not exempt. Spends 80% or more of her time (per client) providing fellowship + protection, and the remaining time help with ADLs/IADLs → exempt (if fulfills 1 above).

What do these terms mean? Defined/explained in rules and on DOL website Fellowship & protection – engaging the person in social, physical, and mental activities such as conversation, reading, games, etc., and being present with the person to monitor his or her safety and well being. ADLs – Activities of Daily Living. Examples are dressing, grooming, feeding, bathing, toileting, and transferring IADLs – Instrumental Activities of Daily Living. Examples are meal preparation, driving, light housework, managing finances, assisting with the physical taking of medications, and arranging medical care. General housekeeping - domestic services that are primarily on behalf of other members of the household, such as doing laundry for another family member or preparing meals for someone other than the person being assisted Medically related services – services that typically require and are performed by trained medical personnel. May be invasive, sterile, or otherwise require exercising medical judgment, such as assisting with tube feeding or catheter care.

Ex. 1: Agency Worker Analysis Based on fact that worker employed by a 3rd party employer (agency), worker not exempt Worker entitled to federal minimum wage and overtime Agency required to pay federal minimum wage and overtime

Ex. 2: Independent Provider, state Medicaid Program Analysis 1.Employer(s)? Probably client. Also state entity? Fiscal Intermediary? 2. What are duties? Primarily assisting client with ADLs and IADLs. Each 4-hour shift, worker required to help client get out of bed, bathe, dress and eat. Based on duties, worker is not exempt. Worker entitled to federal minimum wage & overtime State entity/intermediary required to pay federal minimum wage & overtime Client required to pay federal minimum wage & overtime

Ex. 3: Housekeeper turned caregiver Analysis 1.Employer? Private household – could be exempt, depending on duties. 2. What are duties? Primarily fellowship & protection. Less than 20% of time on ADLs + IALDs. Based on employer and duties, worker is exempt. But, if worker performs domestic service for any other members of household, she’s not exempt.

WWW. NELP.ORG State Impacts

State Impacts, cont. In 29 states + P.R. workers will have 1 st time minimum wage & overtime rights : AL, AK, AR, CT, DE, FL, GA, ID, IN, IA, KS, KY, LA, MO, MS, NH, NM, NC, OK, OR, RI, SC, TN, TX, UT, VT, VA, WV, and WY. In 13 states + D.C. workers will be covered by a higher state minimum wage rate (vs. federal minimum wage): AZ, CA, CO, CT, FL, IL, ME, MA, MI, MO, NV, OH, and WA. → 2 states, CT and FL, will newly cover workers at the higher state rate. In 6 states + D.C. workers will have 1 st time overtime rights: AZ, CA, NE, ND, OH, and SD.

CONCLUSIONS Most home care workers will now be covered under federal minimum wage & overtime protections. Only small portion of workforce will remain exempt. Pay attention to state rules. In many states, workers are also covered under state minimum wage and overtime rules, or just MW. Some states newly cover workers because they track federal definitions Education & outreach will be vital to ensuring workers know their rights and employers follow rules. Experience in states with coverage has shown that this industry is particularly prone to violations. Advocates should encourage state and federal agencies to educate, enforce and coordinate with each other. WWW. NELP.ORG

TITLE IN THIS SPACE Sarah Leberstein Staff Attorney (212) x313 Cathy Ruckelshaus Good Jobs Program Director (212) x306 FOR MORE INFORMATION OR QUESTIONS: WWW. NELP.ORG