New Rule Mandates Overtime Pay for Homecare Nurses

New rules proposed by the U.S. Department of Labor (DOL) under the Fair Labor Standards Act (FLSA) will help stabilize the homecare industry by extending wage and hour protections to homecare workers, including overtime pay for homecare nurses.

The FLSA, often known as the “wage and hour” law requires employers to pay at least the federal minimum wage and to pay overtime after 40 hours of work in a week.

These new rules are designed to extend these basic protections to homecare workers, such as overtime pay for homecare nurses, long excluded under a 40-year old “companionship” exemption.

The Battle for Overtime Pay for Homecare Nurses

The FLSA was passed in 1938 to eliminate child labor, set a minimum hourly wage and establish the maximum hours in the workweek. It did not initially protect domestic workers like cooks, gardeners or servants employed by private households.

Congress extended FLSA coverage to domestic workers in 1974, but exempted casual babysitters as well as companions for the aged and infirm, the latter under a provision that came to be known as the “companionship exclusion.”

Over time, the exemption was used widely to exclude virtually all workers in the growing homecare industry from wage-and-hour protections.

In 2013, the DOL issued the Home Care Final Rule to extend minimum wage and overtime pay for homecare nurses and to almost 2 million homecare workers who provide care for the sick, disabled or elderly, otherwise known as “companionship services.”

Specifically, the DOL announced that rules governing the companionship services exemption would be clarified and wage and hour protection extended to homecare workers.

Under the new rules, previously exempt workers are protected if any of the following apply:

• The homecare worker is employed by a homecare agency or other third-party entity.
• The homecare worker provides domestic services on behalf of members of the family of the person being assisted (e.g. laundry or cleaning for the patient’s daughter).
• The homecare worker provides medical services that typically require and are performed by trained medical personnel because they are invasive, sterile or otherwise require medical judgment (e.g. assisting with tube feeding or catheter care).
• The homecare worker spends more than 20 percent of his or her time in a work week (per patient) assisting with activities of daily living (e.g. dressing, grooming, feeding, bathing and toileting) or instrumental activities of daily living (e.g. meal preparation, driving, managing finances, and arranging medical care).

Only workers employed solely by an individual or household and who spend more than 80 percent of their weekly work hours providing fellowship and protection are exempt.

Department of Labor Secretary Tom Perez stated in a recent blog post that “until the rule, this growing and increasingly important group of workers − overwhelmingly women, and mostly women of color − was left out of the American promise of a fair day’s pay for a fair day’s work. It undermines our nation’s basic bargain when an estimated 40 percent of home care workers rely on public assistance to make ends meet. These are dedicated, hardworking employees, and they deserve to be paid as such.”

However, the Rule was challenged in federal court, but in Aug. 2015, a federal Court of Appeals issued a unanimous opinion affirming the validity of the Home Care Final Rule.

This opinion upholding the Home Care Final Rule became effective on Oct. 13, 2015, when the Court of Appeals issued its mandate.

In June 2016, the U.S. Supreme Court issued an order denying a request to review the Court of Appeals decision, meaning the opinion stands.

Secretary Tom Perez noted on the DOL’s blog that the Supreme Court’s decision to decline to hear a challenge to the rule “concludes a nearly two-year legal battle, ensuring the rule remains in place to help realize President Obama’s vision of an economy that works for everyone. For consumers of home care services, the rule will help stabilize and professionalize the home care workforce. It will ensure even better care for people with disabilities and seniors.”

As of Jan. 2015, employers are required to pay homecare workers both minimum wage and overtime, and maintain records of the hours that they work.

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