DOL’s companionship and live-in care services regs upheld

Finding the Department of Labor’s decision to extend the FLSA’s minimum wage and overtime protections to employees of third-party agencies who provide companionship services and live-in care within a home neither arbitrary nor capricious but grounded in a reasonable interpretation of the statute, the District of Columbia Circuit reversed and remanded the district court’s invalidation of the agency’s latest attempt at changing the regulations. Disagreeing with the district court, the appeals court applied the Supreme Court’s decision in Long Island Care at Home, Ltd. v. Coke to reiterate that the Act vests the DOL with discretion to apply (or not to apply) the companionship-services and live-in exemptions to employees of third-party agencies.

The appeal concerned regulations under two statutory exemptions: Section 213(a)(15), pertaining to companionship services, provides that the FLSA’s minimum-wage and overtime requirements shall not apply with respect to “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 (as such terms are defined and delimited by regulations of the Secretary).’ Second, Section 213(b)(21), pertaining to live-in domestic-service workers, provides that the Act’s overtime protections shall not apply with respect to “any employee who is employed in domestic service in a household and who resides in such household.”

Under the DOL’s new 2013 regulation, third-party employers of companionship-services and live-in employees could no longer “avail themselves” of the statutory exemptions. As for companionship services, the revised regulation states that “[t]hird party employers of employees engaged in companionship services . . . may not avail themselves of the minimum wage and overtime exemption provided by section [2]13(a)(15).” For live-in workers, the revised regulation states that “[t]hird party employers of employees engaged in live-in domestic service employment . . . may not avail themselves of the overtime exemption provided by section [2]13(b)(21).” Plus, the new regs also narrowed the definition of “companionship services,” stating that ”[t]he term companionship services . . . includes the provision of care”–such as “meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care”–only if that care “does not exceed 20% of the total hours worked.”

The appeals court reversed the district court, which first invalidated the revised third-party employer regulation and then separately vacated the DOL’s revised definition of companionship services because it found the 20% limit on hours of “care” contravened both the text of the statutory exemption and congressional intent, and remanded for the grant of summary judgment to the DOL. (Home Care Association of America v. Weil, August 21, 2015, Srinivasan, S.).

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