The Supreme Court’s seminal decision in Long Island Care at Home v. Coke, confirmed that the companionship exemption to minimum wage and overtime under the FLSA applies to individuals employed by third party agencies who provide companionship services in a private home. Regulations limit this exemption to companions who do not spend more than 20% of their time engaged in “general household work” unrelated to the care of the individual for whom the employee serves as companion (29 C.F.R. § 552.6), and one common challenge to applicability of the exemption is a factual allegation that the companion spends his or her time on general household work. In a new decision, the Court of Appeals for the Fifth Circuit has upheld a District Court’s finding, following a trial, that the exemption applied, rejecting such a challenge. Nelms v. Kramer, 2012 U.S. App. LEXIS 18523 (5th Cir. 2012).

In Nelms, plaintiff claimed to have spent substantially more than 20% of her time on tasks such as “heavy cleaning” of parts of the home her charge did not visit, care of household vehicles and work for members of the care recipient’s family. Family members “testified that [plaintiff] spent little or no time on duties unrelated to her care of [her charge].” The Court found that the District Court properly resolved issues of credibility based on this conflicting testimony from the plaintiff and the family, and, having credited the defense witnesses, the ruling that the exemption applied was proper. 

Employers in the home care business must continue to monitor compliance with the companionship exemptions requirements, and also legislative developments on the state and federal level.