DOL Extends Comment Period on Proposed Domestic Caregiver FLSA Exemption

February 21, 2012 – 6:28 pm | By Khristine Scholtz | Post a Comment

Today the Labor Department extended the comment period for proposed changes to the Fair Labor Standards exemption for domestic caregivers. To date the agency has already received a flood of comments on the proposed regulation which would remove domestic caregivers from the Fair Labor Standards Act’s current exemption from minimum wage and overtime pay.

Currently, the FLSA provides an exemption from minimum wage and overtime compensation for domestic employees engaged in providing companionship services. In light of significant changes in the home care industry, the DOL is proposing to update regulations, including examining the definition of “companionship services,” the criteria used to judge whether employees qualify as trained personnel who are not exempt companions, and the applicability of the exemption to third party employers.

So far, supportive comments have focused on high domestic caregiver turnover, success seen in those states that provide full employment benefits for caregivers, and the need to give caregivers the proper respect for their profession.

“Home care worker turnover is high because of the untenable financial situation of most of these workers,” one commenter noted. Another added that the cost of providing benefits, which many cite as the biggest reason to oppose the regulation, is manageable, since 15 states guarantee both minimum wage and overtime pay to their homecare workers — and in those states, the homecare businesses “seem to be managing quite well.”

Finally, comments from supportive business people added that the alternative to providing these protections is forcing caregivers to use “social safety nets that are more expensive, less productive, and keep [these] workers and their children in poverty.”

Commenters who oppose the changes have focused on the decreased hours caregivers will work if employers have to pay them overtime and the resulting lack of continuous and familiar care. Comments expressing opposition to the proposal also emphasized that the elderly and/or disabled people who require caregiver services are paying for such care out of pocket, and that the new regulation will only add to the hardships faced by these clients.

According to one comment, this regulation will “force caregivers to lose hours that they are allowed to work and clients will be faced with adapting to new staff members (something that can be traumatic for special needs persons).”

Home caregivers themselves responded with concerns about decreased hours. As one commentator explained, “the cut in hours would mean I would be required to seek employment elsewhere in a failed economy.” Arguing that requiring overtime pay would not actually give these employees overtime pay (since employers would not want to pay higher rates), one commenter agreed that the proposal, if enacted, would force workers “to get another parttime [sic] job and disrupt the lives of the families and consumers” who use caregiver services.

Finally, commentators feared that the proposal would force those people who desire homecare services out of their homes and into healthcare facilities, destroying the “continuity of care so vital for old folks who are desperately trying to continue to live at home.”

The DOL will accept comments to the regulation until March 12, 2012. According to the DOL’s Notice of Proposed Rulemaking, those interested may submit comments identified by RIN 1235-AA05 online through Federal eRulemaking Portal: http://www.regulations.gov. Written submissions must be addressed to Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, D.C. 20210. All submissions must include the agency name and Regulatory Information Number (RIN) 1235-AA05.

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