The Fair Labor Standards Act exempts employees from it minimum wage and overtime requirement who work in domestic service to provide companionship services for individuals who are unable to care for themselves because of age or infirmity. 29 USC 213(a)(15) The specifics and limitations of the exemption for domestic services employees who provide companionship services is discussed below.
Topics discussed below:
- Companionship services
- Fellowship
- Protection
- Personal care
- Not included in companionship services
- Third-party employers of companionship service employees
- Recordkeeping
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Companionship services
In order for a domestic service employee to qualify for the exemption from minimum wage and overtime laws, they must provide companionship services. The federal administrative rules define companionship services to include providing fellowship and protection to an elderly person or a person who has an illness, injury, or disability such that they need assistant caring for themselves. 29 CFR 552.3
)jx-ګ e)jx-Fellowship
The federal rules define fellowship to include services that engage the person needing care in social, physical, and mental activities. Activities that fall within the definition of fellowship include, but are not limited to:
- conversation
- reading
- games
- crafts
- walks
- errands
- accompanying the individual to appointments
- accompanying the individual to social events
Protection
The federal rules define protection to include monitoring the person’s safety and well-being while at home or away. 29 CFR 552.6(a)
)jx-⫨ e)jx-Personal care
The federal rules include personal care in fellowship and protection so long as they time spent in personal care does not exceed 20 percent of the domestic service workers total hours worked per person and per workweek. Personal care includes activities of daily living and tasks that enable the person to living independently at home. Such activities include, but are not limited to:
- dressing
- grooming
- feeding
- bathing
- using the toilet
- transferring
- meal preparation
- driving
- light housework
- managing finances
- assistance with the physical taking of medication
- arranging medical care
Not included in companionship services
The following services are not considered companionship services and employees are not eligible for the domestic service employee minimum wage minimum wage and overtime exemption when they are performed:
- work performed primarily for the benefit of members of the household other than the elderly or infirm individual 29 CFR 552.6(c)
- medically related services that are typically performed by trained personnel such as registered nurses, licensed practical nurses, or certified nursing assistants, although possessing a degree or license is not determinative but instead the type of services performed 29 CFR 552.6(d)
- providing care and protection for babies and young children who do not have illinesses, injuries, or disabilities 29 CRF 552.106
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Third-party employers of companionship service employees
The exemption for domestic service employees providing companionship services does not apply when the domestic service employee is employed by a third-party employers who has contracted with the individual or other responsible person to provide the services. This limitation on the domestic service employee exemption applies to third-party employers even when they are joint employers with the individual or other responsible person. Third-party employers must pay domestic service employees who provide companionship services both minimum wage and overtime.
The domestic services employee exemption is only available to the individual or other responsible person who hired the domestic service employee, and it may be relied on by the individual or other responsible person even if they are a joint-employer with a third-party. 29 CFR 552.109
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Recordkeeping
To comply with general FLSA recordkeeping requirements, federal regulations allow employers of domestic service employees who provide companionship services and who typically work a fixed schedule to rely on a schedule of daily and weekly hours as record of hours worked so long as:
- the employer or employee has indicated by check marks, a statement, or other acceptable method that the schedule reflects actual hours worked and
- when the actual hours worked vary from the schedule, the exact hours worked are noted on the schedule
