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DOL Proposes Revisions to FLSA's Wage and Hour Laws for Home Care Workers

December 27, 2011

In a recent Carson employment attorney blog, managing partner Vincent Howard discussed the Obama administration's resent proposal to change the 37-year old minimum wage and overtime exemption from the Fair Labor Standards Act (FLSA) for nearly two million home care workers who care for elderly and disabled people across the country.

For years these workers have been considered as companions to the elderly, in the same category as babysitters, and the Obama administration and the U.S. Department of Labor (DOL) calls for these workers to be considered home care aides, and protected under the FLSA--to ensure that they are paid fairly for their important care giving services.

According to the DOL's posted announcement, this change will revise the companionship and FLSA's live-in home worker regulations, in order to more accurately define the responsibilities that an exempt companion performs, and in order to restrict the exemption to exempt companions who work only for the household or families using the companion's services. The DOL also proposed that third party employers, like home care agencies who staff workers, cannot claim the exemption for companionship or the overtime pay exemption for live-in home workers, even if the employee is employed both by the family and the third party.

As Howard Law's employment attorney Vincent Howard previously stated, when the FLSA protections were expanded in 1974 to include domestic service workers, these Amendments created a restricted exemption for both overtime pay and minimum wage requirements of the Act for companions and babysitters for the infirm and elderly, and created an exemption from the overtime requirement only for live-in home workers.

The Los Angeles Times reports that these hard-working workers are often responsible for important tasks such as feeding patients, performing physical therapy, and caring for wounds. The workers reportedly earn around $8.50 to $12 per hour, compared to the federal minimum wage of $7.25. But while industry experts claim that a large majority are paid at least the federal minimum wage, many do not receive overtime compensation when they work over forty hours a week.

According to the U.S. government, six million of the forty million Americans in this country who are older than 65 currently need some kind of daily assistance in order to live outside of a nursing facility or home--a number that is expected to double to 12 million by 2030.

Although industry officials claim the wage and hour proposals might increase costs and cause in-home care agencies to reduce the hours of the employees who work beyond forty hours a week and instead hire more workers, DOL Secretary Hilda L. Solis claims that this proposal would level the playing field for staffing agencies who will no longer be pressured to gain an edge by underpaying their direct competitors on wages. Solis also claims that any increased costs for the elderly would be modest.

As Vincent Howard has reported in a recent Santa Ana employment lawyer blog, under the Fair Labor Standards Act, employees must be paid $7.25 an hour, the U.S. minimum wage, for all hours worked in a forty-hour workweek--with overtime payment of time and one-half times their standard pay for all time worked beyond forty hours in a week. Employers are also required to keep accurate records of all employee hours worked.

Contact Howard Law, PC today to discuss your federal and California labor and employment law concerns.

Wage Protection for Home Care Workers, Los Angeles Times, December 15, 2011

Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations, U.S. Department of Labor Wage and Hour Division Press Release, December 15, 2011

Obama administration seeks to extend federal wage, hour laws to home health-care workers, The Washington Post, December 15, 2011

Related Web Resources:

California Department of Industrial Relations, (DIR)

U.S. Department of Labor: Wage and Hour Division (WHD), Fair Labor Standards Act (FLSA)

Department of Labor (DOL): Wage and Hour Division (WHD)

Related Blog Posts:

Obama and DOL Seek to Extend Federal Wage and Hour Laws to Home Health Care Workers, California Employment Lawyers Blog, December 27, 2011

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