Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) provides a national minimum hourly wage (29 U.S.C. § 206), mandatory overtime compensation (29 U.S.C. §  207), and restrictions on the employment of minors (29 U.S.C. § 212). The FLSA also requires employers to maintain accurate employee records in accordance with the Act’s provisions (29 U.S.C. § 211). To ensure employer compliance with these requirements, both civil and criminal sanctions were provided. Section 215 of Title 29, United States Code, lists the prohibited acts under the FLSA. Section 216(a) of Title 29, United States Code, provides a criminal misdemeanor penalty for willful violations of 29 U.S.C. § 215. Imprisonment up to six (6) months for each offense may be imposed only upon a second or subsequent conviction for an offense under the Act.

The Final Rule narrowed the definition of “companionship services” to ensure that FLSA protections apply to most workers who provide home care services. 78 Fed. Reg. 60,459, 60,463-73. As of the effective date of the Final Rule, January 1, 2015, “companionship services” means the provision of “fellowship” and “protection.” 78 Fed. Reg. 60,557 (to be codified at 29 C.F.R. § 552.6). “Fellowship” means “to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events.” Id. “Protection” means “to be present with the person in his or her home or to accompany the person when outside of the home to monitor the person’s safety and well-being.” Id. Companionship services can also include the provision of “care” if the care is provided “attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20 percent of the total hours worked per person and per workweek.” Id. In this context, “care” means assistance with activities of daily living (ADLs), “such as dressing, grooming, feeding, bathing, toileting, and transferring” and instrumental activities of daily living (IADLs), “such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care.” Id companionship services do not include “domestic services performed primarily for the benefit of other members of the household,” nor “the performance of medically related services” for the consumer. Id. “Medically related services” are services that “typically require and are performed by trained personnel, such as registered nurses, licensed practical nurses, or certified nursing assistants” regardless of the actual training or occupational title of the provider.

Therefore, whether a provider employed solely by a consumer in a shared living arrangement that occurs in the consumer’s private home is entitled to FLSA protections will depend on the tasks she performs for the consumer. For example, a provider who helps a consumer bathe and dress each morning, prepares the consumer’s meals, and assists the consumer with preparing for bed in the evening and does not provide other services is not providing companionship services and therefore is performing domestic service employment that is subject to FLSA protections. Similarly, a provider who provides daily assistance with tube feeding is providing medically related services, and therefore, regardless of her other duties, her work does not fall within the companionship services exemption. On the other hand, a provider whose only responsibility is to spend nights at the residence in case of emergencies is providing companionship services in a given workweek if: (1) the provider does not spend more than 20 percent of her work hours assisting the consumer with ADLs and IADLs and does not perform medically related services and (2) the provider is not an employee of a third-party entity, such as a public or private agency administering the program through which the shared living arrangement was developed. If those two conditions are met, the provider need not be paid in compliance with the FLSA.