Companionship Exemption

The companionship exemption refers to federal labor regulations in the United States that exclude workers providing companionship services to the elderly or disabled from the federal minimum wage and overtime protections that apply to most other American workers.

The exemption came into existence in 1974 through an amendment to the Fair Labor Standards Act (FLSA). While the main purpose of the amendment was to expand labor protections to domestic workers, two exceptions were included: one for those serving as “casual” babysitters and another for those providing “companionship services for individuals who (because of age or infirmity) are unable to care for themselves.”^[1]

Controversy Over Application to Home Care Workers

The United States Department of Labor (DOL) holds significant discretion over how the companionship exemption is interpreted and applied in the workplace. Under the DOL’s current interpretation, the companionship exemption applies to most home care workers (also known as personal care assistants), allowing their employers—unless they are in a state with regulations superseding those at the federal level^[2]--to pay below minimum wage and avoid overtime compensation.

Since the companionship exemption was put in place, a variety of unsuccessful efforts have been made through legislation, court challenges, and by the DOL itself to narrow the exemption so that more home care workers become eligible for minimum wage and overtime. In 2007, the case Long Island Care at Home, Ltd. v. Coke ^[3] brought the issue of the companionship exemption in front of the United States Supreme Court. In this case, home care worker Evelyn Coke claimed she was unfairly denied minimum wage and overtime pay by her employer. While the court ruled against Coke, its decision reaffirmed the DOL’s authority to change its interpretation of the exemption at any time. The New York Times has written several editorials calling for an end to the companionship exemption.^[4][5][6]

Current Status

The DOL is currently considering a change to its interpretation of the companionship exemption in light of what it calls “significant changes in the home care industry.” A notice of proposed rulemaking is expected by October 2011.^[7]

Notes

1. ^ See 29 U.S.C. § 213(a)(15).
2. ^ Paul K. Sonn, Catherine K. Ruckelshaus, and Sarah Leberstein. "Fair Pay for Home Care Workers: Reforming the U.S. Department of Labor’s Companionship Rules Under the Fair Labor Standards Act". National Employment Law Project. http://www.nelp.org/page/-/Justice/2011/FairPayforHomeCareWorkers.pdf?nocdn=1. Retrieved 24 May 2011. 
3. ^ Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 167 (2007)
4. ^ "Caring for the Caregivers". New York Times. 27 January 2009. http://www.nytimes.com/2009/01/28/opinion/28wed1.html. Retrieved 24 May 2011. 
5. ^ "Fair Pay for Caregivers". New York Times. 8 July 2009. http://www.nytimes.com/2009/07/09/opinion/09thur2.htm. Retrieved 24 May 2011. 
6. ^ "Lilly and Evelyn". New York Times. 28 January 2010. http://www.nytimes.com/2010/01/29/opinion/29fri3.html. Retrieved 24 May 2011. 
7. ^ "Application of the Fair Labor Standards Act to Domestic Service". Fall 2010 Semi-Annual Regulatory Agenda. Department of Labor. http://www.dol.gov/whd/regs/unifiedagenda/fall2010/1235-AA05.htm. Retrieved 24 May 2011. 

External links

• PHI's Campaign for Fair Pay