As expected, the United States Department of Labor today released its proposed changes to the companionship and live-in worker regulations under the Fair Labor Standards Act.  What was unknown was how significant the proposed changes would be.

The short answer: Pretty significant.  The regulations substantially limit the companionship exemption under wage & hour laws to companions employed only by the family or household using the services.  In other words, under the proposed regulations, third-party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

The DOL has released a fact-sheet that summarizes the key changes here.  The key changes to the law are discussed here in a side-by-side comparison.  And FAQ to the exemption is available here.

Here is the DOL’s brief overview:

The proposed regulations limit a companion’s duties to fellowship and protection. Examples of activities that fall within fellowship and protection may include playing cards, watching television together, visiting with friends and neighbors, taking walks, or engaging in hobbies. The proposed regulations provide some allowance for certain incidental intimate personal care services, such as occasional dressing, grooming, and driving to appointments, if this work is performed in conjunction with the fellowship and protection of the individual, and does not exceed 20 percent of the total hours worked by the companion in the workweek.

The Department’s proposal makes clear that employees performing services that do not fall within the revised definition of companionship services are not considered exempt from the minimum wage and overtime requirements:

• The proposal would clarify that “companionship services” do not include the performance of medically-related tasks for which training is typically a prerequisite. The current regulations specifically identify trained personnel such as nurses as outside the scope of the exemption, and this clarification more clearly identifies what constitutes medically-related services.
• Under the proposed rule, any work benefiting other members of the household, such as preparing meals or performing housekeeping or laundry for other members of the household, does not fall within the allowable incidental duties of an exempt companion.
• The Department proposes to revise the third party regulation to apply the companionship and live-in domestic worker exemptions only to workers employed by the individual, family or household using the worker’s services. Under the proposed rule, the minimum wage and overtime exemptions would not be available to third party employers, such as home health care agencies, even if the household itself may claim the exemption (such as in a joint employment relationship).
• The proposed regulations would revise the recordkeeping requirements for live-in domestic workers. Under the proposal, employers would be required to maintain an accurate record of hours worked by such workers, just as other covered employees must keep such records.

Notably, the proposed regulations have not been officially published yet. When they are, the public will have a comment period at the Regulations.Gov website.

For all those in the industry, this starts what will undoubtedly be a tense process because the proposed changes — if implemented — will redefine how work gets done for many companies.  Watch for more on the subject in the months ahead.