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On October 9, the Wage and Hour Division of the U.S. Department of Labor announced that it would delay enforcement of the 2013 Final Rule regarding the companionship exemption to the minimum wage and overtime requirements of the Fair Labor Standards Act. Enforcement was originally to begin on the effective date of January 1, 2015, but the DOL now says it will not take enforcement action until after June 30, 2015.

However, this does not mean that employers who provide home health care can rest easy. The effective date of the rule is unchanged, so employees may still bring private lawsuits beginning January 1.

The Department's Final Rule makes two significant changes to the prior regulations:

* the tasks that comprise exempt "companionship services" are more narrowly defined; and

* the exemptions for companionship services and live-in domestic service employees may be claimed only by the individual, family, or household using the services rather than third-party employers such as home health care agencies.

The Final Rule also revises the recordkeeping requirements for employers of live-in domestic service employees.

According to the DOL, "The Department intends for the exemption to apply to those direct care workers who are performing 'elder sitting' rather than the professionalized workforce for whom home care is a vocation." By allowing the exemption to be claimed only by the individual receiving services or the individual's family or household, the DOL said that it "is giving effect to Congress's intent in 1974 to expand coverage to domestic service employees rather than to restrict coverage for a category of workers already covered."

The DOL says that the change affecting third-party employers will benefit nearly 2 million in-home caregivers who are currently exempt from the FLSA minimum wage and overtime requirements.

Under the Final Rule, "companionship services" now means providing "fellowship" and "protection" for an elderly person or person with an illness, injury or disability who requires assistance in caring for himself or herself. The term "fellowship" is narrowly defined as "engag[ing] the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, errands, to appointments, or to social events." The term "protection" is defined as being "present with the person in his or her home or to accompany the person when outside the home to monitor the person's safety and well-being."

Specifically excluded from the definition of "companionship services" are medically-related services that would typically be performed by trained professionals such as nurses, and general domestic services performed primarily for the benefit of other members of the household.

Again, employers should understand that the DOL's recently announced six-month delay of enforcement actions has no impact on an employer's liability for non-compliance with the new regulations as of January 1. Most FLSA lawsuits, and certainly all FLSA collective actions, are filed by private plaintiffs' counsel. The DOL's announcement does not relieve employers of their obligation to comply with the new regulations on and after the January 1 effective date, nor does it preclude private enforcement actions under the FLSA.

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