Last week, the DOL issued a proposed rule which would extend FLSA overtime and minimum wage coverage to a group of employees who have previously been exempt - home healthcare workers employed by third-party companies. I have spoken with friends in the home healthcare industry, who have told me that this would amount to a major change in that industry.
A little background - the FLSA covers companies/workers engaged in interstate commerce. In 1974, Congress amended the FLSA to extend coverage to many domestic workers - maids for example - under the guise that these individuals, even if employed in private homes, affect interstate commerce. There has been, however, a total exemption (from both overtime and minimum wage) for employees employed "to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves". These are home healthcare workers.
The DOL proposed rule, among other things, will do away with the exemption for employees employed by a third-party company to provide "companionship services" in private homes. If, however, the employee is employed directly by the private household, the employee would still be exempt from overtime and minimum wage.
The DOL says that these changes are warranted because of changes in the home healthcare industry. The DOL stated: "[d]ue to significant changes in the home health care industry over the last 35 years, workers who today provide in-home care to individuals are performing duties and working in circumstances that are markedly different than when the companionship services regulations were first promulgated."
The proposed rule will be subject to comments, and no doubt the home healthcare industry will vigorously oppose this. We will have to wait and see what happens, but this could have a big impact on the healthcare industry in Florida.
The DOL also proposed a couple of other important changes: (1) extending overtime and minimum wage coverage to live-in maids employed by third party companies; and, (2) requiring employers (including private households) of live-in help to keep time records for their live-in employees.
I have represented several employers in cases filed by domestic workers, and they are always complicated. Anyone who has the means to employ live-in help should contact an employment attorney to make sure that they are properly paying their employees. In my experience, a number of local Florida plaintiff's attorneys are targeting these types of workers as potential clients.
