In a partial victory for private duty agencies, a federal judge has ruled that the Labor Department misinterpreted the Fair Labor Standards Act (FLSA) with its companionship regulation, which effectively requires providers of companionship and live-in domestic services to pay overtime when their employees work more than 40 hours a week.
Under the Labor regulation, home support workers employed directly by the person who needs their help or by family members acting as the employer are the only parties that could be exempt from the overtime requirement. The Dec. 22 decision by U.S. District Court Judge Richard Leon in Washington, D.C., doesn’t apply to state laws that limit exemptions from state overtime requirements, says Bill Dombi, vice president for law with National Association for Home Care & Hospice, which sued to overturn the companionship exemption rule along with the Home Care Association of America and the International Franchise Association.
Yet to be decided is whether home care companies have to pay hourly home care aides overtime. That depends on whether Judge Leon upholds or denies the regulation’s new definition of companionship services as limited to “fellowship” services, with no more than 20% of the home support worker’s time spent on personal care or housekeeping tasks. The three plaintiff associations are preparing to challenge that part of the regulation as well, Dombi says.
The Labor Department previously announced that while the companionship regulation will take effect Jan. 1, 2015, it will postpone enforcement for six months. Labor now is considering whether to appeal the judge's initial ruling, a department spokesman says.