The Department of Labor has extended for a second time the deadline for the public to submit comments regarding its proposed rulemaking relating to the “companionship exemption,” which would eviscerate the exemption from minimum wage and overtime applicable to many home care workers as affirmed and addressed by the Supreme Court in 2007. Currently, while state law may impose greater payment requirements, federal law does not require payment of minimum wage or overtime to home care workers providing companionship services even if they are employed by a third-party agency. The “thousands” of comments received by the Department reflect the tension between efforts to ensure appropriate minimum compensation is paid to such workers and the skyrocketing costs of care experienced by seniors and other recipients of such services, many of whom are reimbursed for such expenses in fixed amounts set by other federal programs.
After the revised notice and comment deadline passes, the Department will have an opportunity to digest the many varying viewpoints expressed through the commentary, and consider any additional revisions to the proposed regulations. “This is at-times difficult work that can require long hours in some circumstances,” observed Jackson Lewis partner and former Administrator of the Wage and Hour Division Paul DeCamp. “However, any rulemaking must take into account the fixed incomes and fixed reimbursement rates confronting retirees, many of whom may be disabled and wholly dependent on this care. The Department may need to consider a more flexible approach, apart from simply gutting the exemption.”
While there are numerous FLSA exemptions of paramount importance to single industries, many codified at 29 U.S.C. § 213(b), perhaps no other industry’s ability to survive financially is more tied to a specific exemption than the homecare industry vis-à-vis the companionship exemption. Watch this space for further developments on all proposed DOL rulemaking.