Minimum Wage and Overtime Requirements for Employers of Home Care Companions

In June 2007, the United States Supreme Court ruled that the US Department of Labor’s (DOL) regulation exempting employers of home care companions from both the minimum wage and the overtime (OT) requirements of the federal Fair Labor Standards Act (FLSA) is a permissible interpretation of the FLSA.[1]

any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and de-limited by regulations of the Secretary [of Labor]).[2] 

the term domestic service employment refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use. It also includes babysitters employed on other than a casual basis. This listing is illustrative and not exhaustive.[3]

those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, That such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.

The term ``companionship services'' does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions
[under FLSA §13(a)(15)], this fact does not remove them from the category of covered domestic service employees when employed in or about a private household [who might otherwise be exempt from OT pay, but not minimum wage requirements, under FLSA §13(b)(21) (live-in domestic services employees)].^[4]

The DOL has interpreted FLSA §13(a)(15) to extend to companionship workers including those “who are employed by an employer or agency other than the family or household using their services”.[5]  It is this interpretation that the Supreme Court upheld in the Long Island Care case.

The DOL has extensive regulations dealing with domestic service employment, including provisions defining and limiting the terms “babysitting services” and “companionship services”.[6]  

As hinted at above, there is a second FLSA exemption, relating just to OT, for live-in domestic services employees.  See FLSA §13(b)(21) and DOL regulations there under.[7] 

There is no law or regulation in Connecticut that expressly exempts workers in domestic service employment from entitlement to receive at least the minimum wage and OT.  Nonetheless, the Connecticut Department of Labor follows the federal minimum wage and overtime exemptions for such workers, based on its reading of the definition of “employee” in the Connecticut wage-hour law.[8]

In the case of home care companions, New York follows the FLSA overtime exemptions, but with a twist. In New York, OT hours must be paid at no less than 1 ½ times the NY state minimum wage.  The OT hours don’t have to be paid at the usual 1 ½ times the employee’s regular hourly wage if that rate is higher than the minimum wage.[9] 

Updated:  October  2007