Employer’s Corner: Companionship exemption changes in new year

In October, the Wage and Hour Division of the U.S. Department of Labor announced it would delay enforcement of the 2013 Final Rule regarding the companionship exemption to the minimum wage and overtime requirements of the Fair Labor Standards Act. Enforcement was originally to begin Jan. 1, but the Department of Labor now says it will delay enforcement action until after June 30, 2015.

However, this does not mean employers who provide home health care are off the hook. The effective date of the rule is unchanged, so employees may still bring private lawsuits beginning Jan. 1.

The department’s Final Rule makes two significant changes to the prior regulations:

First, the tasks that comprise exempt “companionship services” are more narrowly defined. Second, the exemptions for companionship services and live-in domestic service employees may be claimed only by the individual, family or household using the services rather than third-party employers such as home health care agencies.

The Final Rule also revises the recordkeeping requirements for employers of live-in domestic service employees.

Under the Final Rule, companionship services now means providing fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance in caring for himself or herself. The term fellowship is narrowly and legally defined as “engag[ing] the person in social, physical, and mental activities, such as conversation, reading, games, crafts or accompanying the person on walks, errands, to appointments or to social events.” The term protection is defined as being “present with the person in his or her home or to accompany the person when outside the home to monitor the person’s safety and well-being.”

Specifically excluded from the definition of companionship services are medically related services that would typically be performed by trained professionals such as nurses and general domestic services performed primarily for the benefit of other members of the household.

Finally, employers should understand that the DOL’s recently announced six-month delay of enforcement actions has no impact on an employer’s liability for noncompliance with the new regulations as of Jan. 1. Most Fair Labor Standards Act lawsuits, and certainly all FLSA collective actions, are filed by private plaintiffs’ counsel.

The DOL’s announcement does not relieve employers of their obligation to comply with the new regulations on and after the Jan. 1 effective date, nor does it preclude private enforcement actions under the FLSA. As such, employers should ensure they are in compliance with the rules, and should seek experienced employment law counsel for guidance.

Sarah Phaff is an employment law attorney in Atlanta and Macon at the national labor and employment law firm of Constangy, Brooks, & Smith LLP.