Proposed Bill To Extend Minimum Wage And Overtime To Home Care Workers

Recently, legislation was introduced that would provide federal minimum wage and overtime coverage to in-home care workers.  Currently, the Fair Labor Standards Act (FLSA) exempts care providers working "on a casual basis in domestic service" from minimum wage and overtime requirements.  The Direct Care Workforce Empowerment Act (H.R. 5902) would redefine "casual basis" to exclude those working 20 or more hours per week.  Thus, any direct care provider, including home health aides and nursing aides, working more than 20 hours per week would be entitled to minimum wage and overtime under the FLSA. 

According to the legislation, direct care workers provide care to more than 13 million elderly and disabled Americans.  The Bureau of Labor Statistics at the U.S. Department of Labor has identified direct care workers as one of the fastest growing professions in the country.  The demand for such workers is projected to increase over the next decade.

The FLSA currently contains an exemption from minimum wage and overtime requirements for "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves..."  The Supreme Court has held that this exemption applies to direct care workers employed by third parties (Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007)).   

The proposed bill would amend the FLSA to provide that, "employment is not on a casual basis, whether performed for one or more family or household employers, if such employment for all such employers exceeds 20 hours per week in the aggregate."  This would eliminate the current exemption from the FLSA for any home health care workers who works more than 20 hours a week and require that they be paid minimum wages and overtime.  The bill also provides for data collection and monitoring, establishes an advisory council to monitor the direct care workforce, and creates a grant program to assist states in recruiting and educating the direct care workforce.      
      
Rep. Linda Sanchez (D-CA) proposed the legislation, which has 28 co-sponsors.  The bill has been referred to the House Energy Committee. 

The Labor Department has separately indicated that they plan to propose new regulations by October 2011 related to the employment of home health workers, including the role of third party employers.    

For more information about this proposed legislation or wage and hour compliance issues germane to the healthcare industry, contact a Seyfarth Shaw attorney in the Wage and Hour or Healthcare practice groups.