Your Home Caregivers and the Fair Labor Standards Act

August 22, 2013

Potential Changes on the Horizon to the Fair Labor Standards Act Exemption for Certain Home Care Workers

Update: On September 17th the Department of Labor announced that it had finalized revisions to these regulations. The updated regulations, as outlined below, are set to go in to effect January 1, 2015.

The Fair Labor Standards Act provides regulations for worker protection (such as minimum wage and overtime rules), and was expanded to include “domestic service” workers in 1974. However, the 1974 amendments included exemptions for babysitters and “companions for the elderly and infirm”. The rules have remained largely unchanged since then, though of course the industry (particularly senior care) has changed dramatically. The Department of Labor feels that the original exemption envisioned largely casual, independent workers and not the professional caregiving workforce of today (many of whom now also work for third-party agencies).

Therefore, on December 27, 2011 the Department published a Notice of Proposed Rulemaking (NPRM) to revise the companionship and 24-Hour worker regulations for “two important purposes”:

To more clearly define the tasks that may be performed by an exempt companion
To limit 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.

The review period for this decision was since extended by requests from many parties with concerns. Agencies, especially those providing services reimbursed by Medicaid and Medicare at set (relatively low) rates, worry about the feasability of continuing to provide services under these changes. Though it may seem like a victory for home caregivers, many have expressed concerns that their wages will be effectively lowered because the overtime provision will cause employers to cut hours and schedule differently.

The rule change proposed to remove the exemption for any third-party employer as well as for any caregiver who is a caregiver by “vocation”. This might drive more families to seek services from a caregiver (and only one who is not a caregiver by “vocation” so perhaps untrained/inexperienced) independently, losing out on the protections and oversight a good agency can provide. If a family has a 24-Hour Caregiver, the rule requires employers to track hours rather than working under an agreement as many do now. The rule further specifies the companion duties that allow for the exemption, restricting the types of services that can be provided and perhaps making the determination quite complicated for families employing someone.

There are a lot more complexities to the exemptions and proposed changes. You can read many of the studies and details from the Department of Labor here.

As a family using home caregiver services, it is important to follow this and other labor rules related to home care. If you are a private employer, it is incumbent upon you to know the regulations and follow them. This is just one reason that many families consider hiring a licensed home health agency such as EasyLiving. We keep up with all the laws and regulations, in addition to staff training and oversight, for you.

This issue highlights the importance of a caregiving team approach, which we have previously discussed in What Happens When Mom Doesn’t Like Her Home Caregiver and our interview with Alex Chamberlain, EasyLiving Executive Director, on Caregiving Made Easy. This team approach not only provides numerous benefits to clients (prepared backup caregivers, different approaches and potential improved quality, varied interaction for the client) but also helps us be better prepared to deal with labor changes such as this exemption ruling.

EasyLiving focuses on creating the best environment for our caregivers’ success and building a strong team so that we can adapt as needed. Many agencies are struggling with concerns over the overtime ruling in particular, especially those agencies who provide “live in” caregivers. EasyLiving has chosen not to provide live in caregivers (rather taking the team approach to 24 hour care needs) for a variety of reasons (outlined by Alex in the interview above). We examine these decisions carefully based on our mission, and have long determined that the 24-Hour model of care does not offer our caregivers the best chance to succeed (and therefore offer our clients the best care).

We will continue to stay abreast of all the relevant laws and regulations for you, in addition to helping keep our home caregiver team up to date and prepared. By building strong systems and creating the best possible team, we will always be ready to help.

For inquiries about how we can help you or your family member with Florida home caregiver services in Pinellas and Pasco counties, give us a call at 727-448-0900.

To find out more about working with EasyLiving, check out our Home Health Careers page.