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Wage and Hour Division (WHD)

Frequently Asked Questions (FAQs)





Q. What is the companionship services exemption?

A. Congress passed the Fair Labor Standards Act (FLSA) in 1938 to provide minimum standards of living for workers by requiring many employers to pay at least the minimum wage and overtime for hours worked over 40 hours in a week. Some job categories were not covered by the pay requirements. For example, workers who were employed directly by a household in domestic service were not originally included in the wage protections.

In 1974, Congress changed the law to extend wage protections to virtually all domestic service workers but provided a limited exception from this new requirement for workers who performed casual babysitting and companions for the aged or infirm (the companionship services exemption). In addition, Congress required that minimum wage be paid to domestic workers who lived in the household but did not require overtime payment.

Congress left it to the Secretary of Labor to define what functions an exempt companion could perform. The Secretary published companionship regulations in 1975.


Q. When did the Department last update companionship regulations?

A. The regulations governing these exemptions have been substantively unchanged since they were promulgated in 1975.


Q. Why is the Department proposing to change the companionship regulations?

A. Due 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 nature of the employment relationship and the scope of duties being performed by workers in the home are different than originally contemplated when the exemption was first enacted.


Q. What are the proposed changes?

A. The Department proposes to change the regulations by clarifying the definitions of “domestic service employment” and “companionship services.” The Department also proposes to more specifically describe the type of activities and duties that may be considered incidental to the provision of companionship services. The Department also proposes to change the record-keeping requirements for live-in domestic workers to align them with what other employers must do. Finally, the Department proposes to change the regulation to make clear that employees of third party employers such as staffing agencies are not exempt from minimum wage and overtime protections.


Q. How does the definition of companionship services change under the proposal?

A. The proposed definition of companionship services is limited to those duties that are directly related to the provision of fellowship and protection for a person who, because of advanced age or infirmity, is unable to care for himself or herself. It also allows for the performance of personal care services when those services are performed incidental to the core companionship functions and so long as they do not exceed 20 percent of the employee’s time during a work week.


Q. How will this proposed change affect individuals, families, and/or households directly employing the companion?

A. The proposed change would continue to allow the individual, family, or household employing the worker’s services to claim the companionship exemption (as long as the worker performs only companionship duties as described in the proposed rule), even as it requires all third party employers pay minimum wage and overtime.


Q. Would the individual, family or household employing the worker be able to use the exemption even if it is found to be a joint employer with an agency?

A. Yes. The proposed change would continue to allow the individual, family, or household employing the worker’s services to apply the companionship and live-in exemptions under FLSA §13(a)(15) and would deny all third party employers the use of such exemptions.


Q. Will the companion be allowed to perform any personal care services under the proposal?

A. The proposed regulation limits a companion’s duties to fellowship and protection with some allowance for certain personal care services, provided the services are incidental and performed attendant to and in conjunction with fellowship and protection of the individual and exclusively for that individual.


Q. What kind of personal care services would meet the companionship exemption?

A. The proposed regulation provides an illustrative list of permissible incidental services that may be provided by an exempt companion, 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.

Q. Will employers still be able to claim the companionship exemption when the worker performs general household work?

A. Unlike the current regulations, the companionship services exemption under the proposed regulations would not apply to an employee who performs general household work, such as vacuuming, washing windows, and dusting. Such general household work is the sort of work that Congress sought to cover when it amended the Act in 1974 to extend the minimum wage and overtime protections to domestic service workers such as maids and housekeepers.

The performance of duties that are not for fellowship and protection of the aged or infirm person, or incidental to the provision of fellowship and protection, are not “companionship duties,” and therefore, any performance of general household work would result in the loss of the exemption for the week.


Q. Will live-in domestic service workers (workers who reside in the household where they are employed) be entitled to overtime pay under the proposal?

A. The proposal limits the application of the overtime pay exemption to individuals, families and households employing the live-in domestic worker. Live-in domestics employed jointly or solely by a third party employer, however, would be entitled to minimum wage and overtime for hours worked from that third party employer. In the agency’s long-standing existing regulations that are not part of this proposed rulemaking, it is recognized that an employee who resides on his or her employer’s premises (such as a live-in domestic worker) is not working all the time he or she is on the premises. Ordinarily, live-in domestic workers may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when they may leave the premises for their own purposes. Third party employers of live-in domestic workers would still be entitled to exclude from the employee’s hours worked such non-work time as explained in 29 CFR 785.19 –.23.

Q. Are there other changes for live-in domestic workers?

A. The proposal requires employers to maintain an accurate record of the actual hours worked by such workers. It will no longer be sufficient to have a work agreement between the parties.


Q. For an overnight shift, does the companion have to be paid when they are asleep?

A. Generally, yes, an employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep. All the time is counted as hours worked.

However, if the employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude bona fide regularly scheduled sleeping periods of not more than 8 hours from hours worked.

For more information on sleep time, review the regulations, 29 CFR part 785.20 - .23, which remain unchanged.


Q. What if the employee is up all night providing services to the client?

A. If the sleep period is interrupted to the point where the employee does not have the opportunity for at least five hours of sleep, the entire period must be counted as work time. Interruptions must be paid as work time even if sleep time is not paid.


Q. What if there is no agreement about sleep time?

A. Where there is no express or implied agreement with respect to sleep time, all hours must be counted as work time.


Q. If a worker is assigned to provide services to multiple clients during the workweek and must travel to do so, would that time count as compensable work time?

A. Yes, travel time between multiple clients during a workday is considered hours worked under the Fair Labor Standards Act and the agency would be responsible for the payment of both minimum wage and overtime.


Q. Is an employee paid for travel from one appointment location to another?

A. Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. For more information about travel during the workday, review the regulations, 29 CFR 785.38.

However, an employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time. For more information about time spent commuting, review the regulations, 29 CFR 785.35.


Q. Will the proposed section 552.109 of the regulations preclude employers from utilizing the sleep time rules when determining compensable hours?

A. Proposed section 552.109 precludes third party employers from claiming the overtime pay exemption for hours worked over 40 in a workweek by a companion or live-in domestic service employee. However, the individual or member of the family or household using the employee’s services may be entitled to use the overtime exemption. In determining the number of hours worked, if the employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude bona fide regularly scheduled sleeping periods of not more than 8 hours from hours worked. If the sleep period is interrupted to the point where the employee does not have the opportunity for at least five hours of sleep, the entire period must be counted as work time. Absent an implied or express agreement, all hours worked must be counted as work time. If the employee is required to be on duty for less than 24 hours, the employee is working even though he or she is permitted to sleep or engage in other personal activities when not busy.