In a previous news item we alerted you that effective October 2015, certain caregivers are no longer exempt from the Fair Labor Standards Act, and therefore must be paid minimum wage and overtime by their employers. Since then we have received numerous calls about the new regulations, which we have passed on to Ford Harrison, LLP, a West Palm Beach, Florida law firm specializing in employment law. Below, Attorney Laura Mall provides an explanation to help you determine what your obligations are under the new law. We also provide her contact information if you have additional questions.
Companion or Caregiver: A Distinction with a Costly Difference
For over 50 years, household employees who provided “fellowship, care and protection” to the elderly or disabled were exempt and therefore did not have to comply with the Fair Labor Standards Act (“FLSA”) – the federal law requiring the payment of minimum wages and overtime. Those days are mostly over – as a result of new regulations which took effect last year. Depending on exactly how much caregiving services are being rendered, household employers may need to revisit how they are paying these kinds of employees. Notably, live-in caregivers privately employed by the household remain exempt – but for all others (including agency employees), the kinds of services have been neatly defined so that an employee providing “fellowship and protection” remains exempt only if not delivering “care” more than 20% of the time:
Exempt Services: “Fellowship” means to engage the person in social, physical, and mental activities. Exempt “protection” means to be present with the person in their home or to accompany the person outside of the home to monitor his/her safety and well-being. Examples include conversation; reading; games; crafts; going along on walks, errands, appointments, and social events.
Non-Exempt Services: “Care” on the other hand is defined as assistance with activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and tasks that enable a person to live independently at home (such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care).
As a practical matter, most companions will no longer be exempt – which means they will have to comply with the FLSA’s minimum wage and overtime pay requirements. Failure to do so could result in the payment of double the amount of back wages owed, plus attorneys’ fees on both sides (yours and your employee’s).
Laura L. Mall practices Employment Law in the West Palm Beach office of Ford Harrison, LLP. She represents employers only and often defends wage and hour claims such as those implicated here.
