Changes to FLSA Overtime Exemption for Domestic Service Workers are Coming

Effective January 1, 2015, the Fair Labor Standards Act overtime exemption for “domestic service workers” will change, having significant ramifications for employers of these employees. Until this change, domestic service workers generally have been exempt from overtime compensation, which means they need not be paid at the rate of time and a half for hours worked in excess of 40 per workweek. The U.S. Department of Labor has issued a Fact Sheet to summarize the changes. Here are the main points to understand:

  • A third party, such as a staffing agency, may not claim the overtime exemption. This change also affects employers who employ an individual jointly with a third party. Instead, the exemption applies only if an individual, family, or household employs the domestic worker directly. As a result of this change, a staffing agency or third party that places domestic workers must pay overtime for hours worked over 40 hours in a workweek. (Also note that applicable state law may impose additional overtime obligations.)
  • The nature of duties falling within the overtime exemption will be narrowed to fellowship and protection of an elderly person or person with an illness, injury, or disability who requires assistance with self-care. The performance of other related duties involving “care” do not destroy the exemption, provided they do not exceed 20% of the total hours worked in the workweek.
    • “Fellowship” means social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, on errands, to appointments, or to social events.
    • “Protection” includes being present with the person in his/her home, accompanying the person when outside of the home, and monitoring the person’s safety and well-being.
    • “Care” includes activities such as daily living activities, i.e., dressing, grooming, feeding, bathing, toileting, and transferring.
  • If an employee performs medically-related work, typical of a nurse or nursing assistant, during the workweek, the exemption is lost for that workweek.
  • Even if the employee qualifies as a domestic service worker, the employee still must be paid for all hours worked at the federal minimum wage. However, if the individual is employed by a staffing company, the person must be paid at least minimum wage for all hours worked up to 40 hours in a workweek, and at time and a half for any hours worked in excess of 40 in a workweek.
  • If government assistance is provided directly to the individual, family, or household to pay for domestic services, it is not an open door to apply the exemption to all hours worked by the domestic service worker beyond the funding. If the domestic worker performs services not covered by the funding and non-exempt in nature, the non-exempt work is overtime eligible.

The changes to the overtime exemption do not affect the other regulations for domestic service workers, such as the rules defining whether time for travel, sleep, and waiting is compensable.

For more information regarding the domestic service worker exemption or other FLSA issues, please contact an attorney in the Gibbons Employment & Labor Law Department.

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