The Fair Labor Standards Act (FLSA) exempts companions for the elderly and infirm from the protections of minimum wage and overtime pay. First established in 1974, workers who are considered companions must provide care and companionship for the individual in their care, and no more than 20% of their working hours can be spent in general housekeeping activities.
Demographically, the number of elderly who are "aging in place" and receive companionship care from non-related adults has soared since the "companionship exemption" was first defined. There have been several attempts at overturning this FLSA exemption, both in the courts and legislatively. Bills were introduced in the current Congress to provide a legislative remedy - these are currently stalled and not expected to make progress this year.
Frustrated by the lack of legislative action and under significant pressure from labor unions, the Department of Labor under the leadership of Secretary Hilda Solis announced in July 2011 that it would begin a review of the definition of which caregivers qualify for the exemption. The DOL is widely expected to significantly narrow the definition to only include very occasional workers. The agenda related to the FLSA Companionship Exemption review states "DOL intends to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years."
Recent remarks from Secretary Solis provides even stronger evidence of the direction the DOL will take with review of the "companionship care" definitions. In an address October 6 at the Rosalynn Carter Institute Family Caregivers Summit, Secretary Solis noted:
I'm also taking a hard look at the "companionship" exemption that has prevented some home health care aids from earning minimum wage and overtime pay under the Fair Labor Standards Act. We know the duties these professionals perform have grown more demanding over time, requiring greater autonomy, responsibility and skill. And many are being employed not just by families but also by staffing agencies in the business of providing these services. Domestic care workers are now providing these services in both home and community-based settings. Often, they're serving people with physical and developmental challenges, as well as people with chronic and terminal conditions. It's demanding work. So we'll have more to say about this rule once it goes through the regulatory process.