Although the regulations governing these exemptions have been substantially unchanged since they were promulgated in 1975, the home care industry has undergone a dramatic transformation in the past several decades. As more individuals choose to receive services at home rather than in nursing homes or other institutions, workers who provide home care services perform increasingly skilled duties. Referred to as “direct care workers” in the Final Rule, these workers are employed under titles including certified nursing assistants, home health aides, personal care aides, and caregivers. Today, direct care workers are, for the most part, not the elder sitters that Congress envisioned when it enacted the companionship services exemption in 1974, but are instead professional caregivers.
There has been a growing demand for long-term home care for persons of all ages, and as a result the home care industry has grown dramatically. Despite this industry’s growth and the fact that many direct care workers perform increasingly skilled work previously done by trained personnel, direct care workers remain among the lowest paid in the service industry, impeding efforts to improve both jobs and care.
Many direct care workers employed by individuals and third parties have been excluded from the minimum wage and overtime protections of the FLSA under the current companionship services exemption, which courts have read broadly to encompass essentially all workers providing services in the home to elderly people or people with illnesses, injuries, or disabilities regardless of the skill required to provide the care. This broad application of the exemption harms direct care workers, who depend on wages for their livelihood and that of their families, as well as the individuals receiving services and their families, who depend on a professional, trained workforce to provide high-quality services and continuity of care. In view of these changes, the Department has revised its regulations concerning domestic service workers in large part to narrow the companionship services exemption to apply only to the types of workers Congress intended to fall outside the scope of the FLSA. For more information see Fact Sheet: Application of the Fair Labor Standards Act to Domestic Service; Final Rule.
October 2018
Tags: Home Care
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