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Wage and Hour Division (WHD)

Comparison of Current vs. Proposed Companionship Regulations


Definition of Domestic service employment - 552.3
Current Proposed
Defines domestic service employment; provides illustrative list of domestic service workers. Defines domestic service employment and deletes requirement that the services be performed in the home of the employer; updates the illustrative list of domestic workers- adds home health aides, personal care aides, nannies- deletes governesses.
 
Definition of companionship services - 552.6
Current Proposed
Defines “companionship services” as fellowship, care and protection for a person who because of advanced age or mental or physical infirmity cannot care for his or her own needs. The proposed rule divides the section into four paragraphs (a)-(d).

The proposed rule alters the definition of “companionship services” to “the provision of fellowship and protection for a person who, because of advanced age or physical or mental infirmity, is unable to care for themselves.” Adds clarifying definitions of fellowship and protection.
Allows 20 percent limitation for incidental general household work. Allows unlimited care services such as meal preparation, bed making, washing of clothes and other similar services Deletes the current 20 percent limitation for general household work from this paragraph, and proposes a 20 percent limitation for incidental services performed attendant to and in conjunction with the provision of fellowship and protection. Provides a non-exhaustive list of incidental services involving occasional: Dressing, grooming, toileting, driving to appointments, feeding, laundry, bathing. Clarifies the limited nature of the functions allowed.
Excludes care and protective services that are performed by trained personnel. Deletes the exclusion for care and protective services by trained personnel from this paragraph. The proposed rule excludes medical care that is typically provided by personnel with specialized training.
 
Third Party Employment - 552.109
Current Proposed
(a) Employees providing “companionship services” and employed by an employer or agency other than family or household are exempt from the minimum wage and overtime pay provisions. (a) Employees providing companionship services and employed by an employer or agency other than individual or member of family or household using the services are entitled to minimum wage and overtime pay.

An individual or member of the family or household using the services, even if considered a joint employer, is still entitled to assert the minimum wage and overtime pay exemption under FLSA §13(a)(15).
(b) Babysitters employed by an employer or agency other than family or household are not employed on “casual basis” for purposes of 13(a)(15) exemption. (b) no change.
(c) Live-in domestic employee employed by an employer or agency other than family or household are exempt from overtime pay provision under FLSA §13(b)(21). Exemption does not apply to an employee who works only temporarily. (c) Live-in domestic service workers employed by an employer or agency other than individual or member of family or household using the services are entitled to overtime pay. An individual or member of the family or household using the services, even if considered a joint employer, is still entitled to assert the overtime pay exemption under FLSA §13(b)(21).