The Bureau of Labor Statistics (“BLS”) projects that home health aid jobs will increase nearly 50% between the years 2008 and 2018. In 2008, BLS found the median hourly wage of home health care services employees was only $7.94. Many home healthcare employees spend significant time traveling between visits for which they are not compensated, and work more than 40 hours per week, but are not paid overtime. Unfortunately, this is the case because home healthcare employees are generally exempt from the Fair Labor Standards Act (“FLSA”) as “companionship services”, which means their employers are not required to pay minimum wage or overtime compensation.
Long overdue, on December 27th, 2011, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking that would modify the Fair Labor Standards Act (“FLSA”) to require overtime pay for home care workers. Significantly, the proposal limits the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household. Comments on the proposed rule may be submitted online by anyone February 27, 2012. We look forward to reporting when the proposed rule is adopted by the DOL.