Traditionally, home health workers who have provided for the care, fellowship, and protection of persons who, because of their advanced age or physical or mental infirmity could not care for themselves, have been exempt from the federal minimum wage and overtime requirements. These workers are exempt from these wage and hour protections under the “companionship” or “live-in domestic” services exemptions of the Fair Labor Standards Act (FLSA).

In September of 2013, however, the U.S. Department of Labor (DOL) issued a final rule that narrowed the definitions of “companionship services,” “fellowship and protection,” “care,” and other related terms and eliminated the ability of third-party employers to take advantage of the companionship or live-in domestic exemptions as well. Accordingly, federal minimum wage and overtime protections under the FLSA will now apply to home health workers employed by third-party employers. Individuals who directly employ home health workers are still allowed to claim these exemptions for home health workers who qualify under the narrowed definitions, but third-party employers (such as home health care agencies) may not.

When the rule was issued, the DOL delayed its effective date until January 1, 2015, in order to allow employers “time to adjust,” but the time for compliance is now on the horizon. The current federal minimum wage is $7.25 per hour, and covered employees must be paid overtime for hours worked in excess of 40 hours per workweek at a rate not less than one and one-half of their regular rate of pay. Additionally, many states have enacted their own minimum wage, overtime, and meal and rest break requirements, which may already apply to home health workers in those states.

With the final rule’s effective date fast approaching, employers of home health workers should perform internal audits to determine whether their home health workers are being paid in compliance with FLSA minimum wage and overtime requirements (and any applicable state law wage and hour requirements). If any wage and hour compliance gaps are discovered, employers should take steps to ensure that home health workers are paid in accordance with the final rule by January 1, 2015.

For further discussion of the September 2013 DOL final rule, please refer to our previous post, “2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies.

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