Section 3(m) of the FLSA allows an employer to, under certain circumstances, count as wages “the reasonable cost … to the employer of furnishing such employee with board, lodging, or other facilities.” 29 U.S.C. § 203(m).

Because federal minimum wage and overtime protections now apply to home care workers pursuant to the Home Care Final Rule, Application of the Fair Labor Standards Act to Domestic Service, 78 Fed. Reg. 60,454 (Oct. 1, 2013), many employers of home care workers will make use of the section 3(m) credit.

If an employer claims a section 3(m) credit for lodging provided to an employee, the WHI must conduct a detailed analysis that includes interviews and a review of all necessary records to determine if the requirements described above are met and if so, the appropriate amount of the credit.

On December 17, 2015, the Wage and Hour Division (WHD) issued Field Assistance Bulletin 2015-1: Credit toward Wages under Section 3(m) of the FLSA for Lodging Provided to Employees to provide guidance to WHD field staff regarding credit toward wages under section 3(m) of the Fair Labor Standards Act (FLSA) for lodging provided to employees.