On June 7, 2012, Sens. Mike Johanns (R-NE), along with 12 other lawmakers, introduced the Companionship Exemption Protection Act (S. 3280). That bill would preserve the companionship services exemption for minimum wage and overtime pay for third-party employers. A similar bill was introduced in the House of Representatives last September but has not had any movement since it was referred to the Subcommittee on Workforce Protections in November.
If passed, the bills would amend the Fair Labor Standards Act of 1938 (FLSA), exempting workers providing companionship services from the minimum wage and overtime requirements, regardless of whether they are employed by individuals, families, or third-parties. Companionship services are defined by the Senate bill as “services which provide fellowship, care, and protection for individuals who, because of advanced age or physical or mental infirmity, are unable to care for themselves, including but not limited to” general household work, meal preparation, bed making, clothes washing, errands, assistance to appointments, laundry, medication reminders, bathing, assistance with incontinence and grooming, and other similar services. The proposed definition would not include services relating to the care of the aged or infirm that require and are performed by trained medical personnel, such as nurses.
The Senate and House bills are intended to prevent the United States Department of Labor (DOL) from moving forward with a proposed rule that would extend minimum wage and overtime requirements to more than a million in-home care providers. When enacted in 1938, the FLSA did not apply to domestic services workers employed directly by households. In 1974, Congress extended wage protections to most domestic service workers but provided a limited exception from the wage and overtime pay requirements for casual babysitters and companions for the aged or infirm, and created an exemption from overtime pay requirements for live-in domestic workers (“the companionship exemption”). According to the DOL, the in-home care services industry has significantly expanded and changed since the companionship exemption was enacted more than 35 years ago. To that end, on December 15, 2011, the DOL issued a proposed rule intended to limit the companionship exemption to companions employed only by the family or household using the services. Under the DOL’s proposed rule, third-party employers, such as health care staffing agencies, would no longer be able to claim the exemption, even where the third party and family/household jointly employ the worker.
The Companionship Exemption Protection Act would, in effect, preserve the companionship exemption in its current form. In a press release, Sen. Johanns said that the DOL’s proposed rule would drive up in-home care costs, forcing families to put loved ones in institutionalized care facilities. The Senate bill has been referred to the Committee on Health, Education, Labor, and Pensions. To date, Congressional efforts to modify FLSA coverage for in-home care workers have not made much progress.