TBA Law Blog


Posted by: Christy Gibson on Oct 7, 2013

By D. Wes Sullenger*

On September 17, 2013, the Department of Labor issued a final rule that will extend the Fair Labor Standards Act’s minimum wage and overtime protections to most individuals who provide home care to elderly and disabled individuals.  DOL stated this rule fulfilled President Obama’s promise to ensure direct-care workers received fair pay.  Direct-care workers include home health aides, personal care aides, and certified nursing assistants who visit elderly and disabled individuals in their homes to provide services essential to allowing the individuals to live outside an institutional setting. 

Application of the FLSA’s minimum wage and overtime provisions to these employees had been a controversial issue with laws originally intended to apply to live-in nurses, butlers, and other “companionship workers” extended to direct-care workers assigned by home health agencies to provide periodic care to individuals.

The new rule extends minimum wage and overtime protections to all such workers by clarifying that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.  The rule retains the original intent of the companionship worker exemption, however, by providing that individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting, or engaging in hobbies) and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The new rule will become effective on January 1, 2015.  DOL has posted the rule, fact sheets, and other materials to help with the transition on the Internet at http://www.dol.gov/whd/homecare/.

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* D. Wes Sullenger is the founder of the Sullenger Law Office in Paducah, Kentucky.  His practice focuses on Fair Labor Standards Act collective actions and representing individuals in discrimination and other employment law matters.  Wes is licensed in Tennessee and Kentucky. He may be contacted at wes@sullengerfirm.com or (270) 443-9401.