As we reported here, the Wage and Hour Division of the U.S. Department of Labor previously announced it would propose a rule regarding the applicability of the companionship exemption to the FLSA’s minimum wage and overtime requirements. This longstanding exemption was the subject of a rare Supreme Court opinion on FLSA issues, in which the Court upheld the exemption’s historic application to individuals employed by third party agencies who provide care in a private home. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). According to news reports, Labor Secretary Hilda Solis will announce the Department’s rulemaking proposal today. 

If enacted, the proposed rules will likely eliminate or eviscerate the exemption, bringing many if not most home health aides and other domestic workers within the ambit of FLSA protection. This regulatory change would pose difficult fiscal challenges to individuals who require such services on a regular, sometimes round-the-clock basis, and to agencies which are in the business of providing such services to Medicare or Medicaid-eligible individuals, and which are reimbursed for providing those services at a fixed rate.

Industry employers should review the proposed rule closely and prepare to participate in the mandatory 60-day notice and comment period which will follow its announcement, as the comment period will provide the employer community with its first and likely best opportunity to influence the rule.