Many home care workers will now be entitled to the federal minimum wage and overtime pay protections that apply to most US workers. The US Department of Labor (DOL) has announced that the Final Rule making the Fair Labor Standards Act (FLSA) applicable to direct care workers has survived the final legal hurdle that stalled its implementation ever since it was scheduled to take effect on January 1, 2015. The DOL will begin implementing a time-limited discretionary enforcement period – between November 12, 2015 and December 31, 2015 – to enable states and other entities to come into compliance with the Final Rule.
Under the Final Rule, third-party employers of direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers, will no longer be able to rely on the FLSA’s “companionship” exemption and overtime exemption for “live-in domestics.” In this context, a third party employer typically refers to a staffing agency, public agency, or home care agency. However, workers employed solely by a family or individual may be covered if they are performing medically-related duties or are providing more than a limited amount of care in addition to fellowship and protection. 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.
Employers covered by the Final Rule are required to maintain certain records for each non-exempt worker including identifying information about the employee and data about the hours worked and the wages earned, described at 29 CFR Part 516. Payroll records must be maintained for three years and records showing the basis of wage computations for two years. Employers must also display the DOL’s official FLSA poster as well as other required federal and state labor law postings. CPC’s All-On-One™ labor law poster is a practical compliance solution for home care agency offices. For employees that do not frequent the home office, CPC’s Mobile Poster Pak™ combines all required state and federal labor law postings in a portable booklet for viewing where home care workers work – on location.
The DOL has created a web portal with interactive web tools, fact sheets and other materials to help families, other employers and workers understand the new federal requirements available at www.dol.gov/whd/homecare. Employers should also be careful to comply with any state law requirements that apply to direct care employees. State standards may vary appreciably.