Department of Labor Discusses Joint Employment, Changes in the Senior Caregiver Companionship Exemption and Announces Increased Enforcement
The Private Care Association, the voice of private duty home care, met in earlier this month in Orlando, FL and invited the US Department of Labor to discuss Joint Employment and Changes in the Companionship Exemption with its members. A guest appearance was made by Michael Hancock, Assistant Administrator for Policy, Wage and Hour Division of the U.S. Department of Labor and Melissa Murphy, Senior Attorney, Office of the Solicitor U.S. Department of Labor. Mr. Hancock and Ms. Murphy addressed an anxious crowd of almost 200 independent homecare staffing agencies to discus joint employment, the expiration of the Companionship Exemption for home health agencies and stepped up enforcement by the DOL in 2015 related to the enforcement of the Fair Labor and Standards Act (FLSA).
The US DOL acknowledged that the senior care industry is subject to increased enforcement, and warned that many current industry practices place the senior care referral agencies and their clients at risk.
The Companionship Exemption:
The federal Fair Labor Standards Act (FLSA) was amended in 1974 to specifically include domestic service workers. At that time, companions to the aged and infirm were the only domestic service workers who were exempted from the FLSA's minimun wage and overtime rules.
Effective January 1, 2015, the exemption officially ended for home healthcare agencies that directly employ their caregivers. Families who privately employ caregivers may still qualify for a more limited companionship exemption and be exempt from the requirement to pay overtime and minimum wage.
To qualify, the privately employed caregiver's scope of duties must meet the new definition of a companion. Companionship services are defined as services that provide fellowship and protection to an elderly or disabled person. Activities such as assisting with a puzzle or game or engaging the senior in casual conversation over a meal are examples of companionship activities. In order to qualify for the companionship exemption a caregiver may not engage in any general housekeeping activities and may not spend more than 20% of their time providing personal care services, often known as Activities of Daily Living (ADLs), such as dressing, grooming, feeding, bathing, toileting and transferring; and Instrumental Activities of Daily Living (IADLs) which are tasks that enable a person to live independently at home, such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care.
While the law changes on January 1, 2015, the Department of Labor granted a 6 month stay of enforcement to allow homecare agencies and Medicaid programs ample opportunity to make necessary operational adjustments. Employers still run the risk of being separately sued by caregivers, as the law is still in effect.
These changes coupled with increased enforcement from the DOL outline the increased need for home health referral agencies to ensure they are not acting as joint employers of caregivers. The US DOL stressed the need for referral agencies to clearly define to care recipients, families and caregivers that the families are the employers of the caregivers that they hire through their referral agency.
Joint employment is the sharing of control and supervision of an employee's activity among two or more business entities. This is often a hot topic among homecare referral agencies that do not employ their own caregivers because certain activities could cause the referral agency to be jointly responsible for overtime payments, FICA and federal and state unemployment taxes if 1) the proper employment taxes are not paid by the care recipient and 2) they are deemed a joint employer of a caregiver.
As Mr. Hancock and Ms. Murphy discussed, Joint employment is determined by applying the "economic realities" test, which examines a number of factors to determine whether a worker is economically dependent on an employer, thus creating an employment relationship. Ultimately joint employment is decided by the courts based on economic dependence; however, the DOL has outlined the following factors the courts look at when making a determination of joint employment.
- whether a possible employer has the power to direct, control, or supervise the worker(s) or the work performed;
- whether a possible employer has the power to hire or fire, modify the employment conditions or determine the pay rates or the methods of wage payment for the worker(s);
- the degree of permanency and duration of the relationship;
- where the work is performed and whether the tasks performed require special skills;
- whether the work performed is an integral part of the overall business operation;
- whether a possible employer undertakes responsibilities in relation to the worker(s) which are commonly performed by employers;
- whose equipment is used; and
- who performs payroll and similar functions.
HomeWork Solutions partners with senior care referral agencies nationwide to provide payroll and tax services to their client families who employ in-home senior caregivers. HWS' eldercare payroll services simplify payroll and tax compliance for the families, allowing family members to focus on focus on activities that more directly benefit their aging loved ones. Give us a call if you would like to learn more at 800.626.4829 or request a free telephone consultation.
Update January 3, 2015: The US District Court for the District of Columbia struck down the homecare overtime and minimum wage changes scheduled to become effective January 1, 2015. The US Department of Labor is expected to appeal.
Update August 24, 2015: The Federal Appeals Court reversed the December 2014 District Court ruling and the US Department of Labor is expected to announce the FLSA changes will go into effect January 1, 2016. Homecare workers employed by third parties will be 100% covered by the FLSA's minimum wage and overtime provisions. Homecare workers employed privately by families may continue to be exempted depending on the amount of personal care services provided by the senior caregiver. Any privately employed homecare worker who provides any general housekeeping servcies will be covered by the FLSA.