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Wage & Hour – Development & Highlights To Highlight Recent and Noteworthy Developments In Cases And Regulations on Wage and Hour Laws That Affect Large and Small Businesses

The United States Department of Labor Cares About Home Care Workers

Posted in Exemptions

Last week, witnesses testified at a hearing before a subcommittee of the House Education and Workforce Committee on a proposal by the United States Department of Labor (“DOL”) to extend minimum wage and overtime protections to in-home care providers.  Currently, in-home care workers are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act (“FLSA”).  The DOL is seeking to modify the law so that in-home care workers who work for third parties, such as staffing agencies, are not exempt from the FLSA’s requirements. Under the new law, as proposed by the DOL, only workers who are employed by households to perform “fellowship” and protection duties would be exempt.  “Fellowship” and protection duties include activities such as playing cards, visiting with friends, and taking walks.

Supporters of the proposed rule testified at the hearing that it would give long overdue protections to vulnerable workers.  In contrast, opponents of the proposed rule argued that it would harm both the workers it seeks to protect and the individuals receiving the care.  The basis for this argument is that the proposed rule change would result in home workers working less hours and thus potentially making less money, and that individuals needing home care would be unable to afford the services.

The proposed rule has resulted in thousands of comments from the public, but in the end, it may not have any significant impact. Nancy J. Leppink, deputy administrator of the DOL’s Wage and Hour Division, testified that half of the states already have laws requiring in-home care workers to be paid minimum wage and overtime.  Moreover, Ms. Leppink stated that almost the entire cost of home care provided to individuals would funded by Medicare and Medicaid, and for this reason, should not have any effect on the level of care.  Additionally, the rule change would not apply to care workers directly employed by households, nor would it require that workers be paid for sleep time.

The comment period for the proposed rule closed on March 21, 2012.  The DOL has not provided a time table as to when it will complete analysis of the public comments.