Application of the Fair Labor Standards Act to Domestic Service

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 552

RIN 1215-AA82

Application of the Fair Labor Standards Act to Domestic Service

AGENCY: Wage and Hour Division, Employment Standards Administration,

Labor.

ACTION: Proposed rule; reopening and extension of comment period.

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SUMMARY: This document reopens and extends the period for filing

written comments on a proposed revision to Sec. 552.109 of Regulations,

29 CFR part 552, which was published in the Federal Register on

December 30, 1993 (58 FR 69310), to clarify the minimum wage and

overtime exemption under the Fair Labor Standards Act (FLSA) for

certain employees of third-party employers who provide domestic

companionship services. The Department is continuing to consider this

particular proposal, and this action is taken in order to obtain

additional comments from interested parties. A separate final rule

published elsewhere in this issue amends 29 CFR part 552 to incorporate

changes necessitated by amendments to Title II of the Social Security

Act, which were enacted October 22, 1994, as Pub. L. 103-387 (Social

Security Domestic Employment Reform Act), and makes other updating and

technical revisions as proposed in the notice of December 30, 1993.

DATES: Comments are due on or before November 7, 1995.

FOR FURTHER INFORMATION CONTACT:

Richard M. Brennan, Acting Director, Division of Policy and Analysis,

Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, Room S-3506, 200 Constitution Avenue NW.,

Washington, DC 20210, (202) 219-8412. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: The Fair Labor Standards Act of 1938 (52

Stat. 1060, as amended; 29 U.S.C. 201 et seq.), as amended by the Fair

Labor Standards Amendments of 1974 (Pub. L. 93-259, 88 Stat. 55),

extended with certain exceptions the FLSA's minimum wage, overtime pay,

and recordkeeping provisions to domestic service employees whose

compensation for services would constitute wages under section 209(g)

of Title II of the Social Security Act, or who are employed by one or

more employers for more than 8 hours in the aggregate in any workweek.

Section 13(a)(15) of the FLSA provides an exemption from the minimum

wage and overtime pay requirements of the Act for ``employees employed

on a casual basis in domestic service employment to provide babysitting

services,'' and for domestic service employees employed ``to provide

companionship services for individuals who * * * are unable to care for

themselves.'' Section 13(b)(21) provides an overtime exemption for

domestic service employees who reside in the household in which they

are employed. On February 20, 1975, regulations and interpretations

implementing the domestic service employment provisions of the FLSA

were published in the Federal Register (40 FR 7405) at 29 CFR part 552.

The Department published a notice of proposed rulemaking in the

Federal Register on December 30, 1993 (58 FR 69310), inviting public

comments until February 28, 1994, which, among other things, would

revise Sec. 552.109 to clarify that, in order for the exemptions in

FLSA sections 13(a)(15) and 13(b)(21) to apply, employees engaged in

providing companionship services and live-in domestic service employees

who are employed by a third-party employer or agency must also be

``jointly'' employed by the family or household using their services.

In addition, the Department invited public comments on certain updating

and technical changes to 29 CFR part 552.

The Department proposed to revise Sec. 552.109 to provide,

consistent with rulings of the Wage-Hour Administrator, that companions

and live-in domestics employed by third-party employers are eligible

for the exemptions in FLSA sections 13(a)(15) and 13(b)(21) only where

the individuals are also employed by the family or household using

their services. This clarification was considered necessary in order to

make the underlying definition of ``domestic service employees'' (i.e.,

someone who performs services of a household nature ``in or about a

private home * * * of the person by whom he or she is employed * * *'')

at Sec. 552.101 internally consistent with Sec. 552.109, applicable to

domestic service employees who provide ``companionship services.''

A total of 7 comments were received in response to the notice. All

focused their remarks on the proposed revision

[[Page 46798]]

to Sec. 552.109 concerning joint employment and third-party employers.

After review of the comments received to date, the Department has

concluded that it is appropriate to continue the rulemaking on the

proposed revision to Sec. 552.109. With respect to the updating and

technical changes that were proposed in the December 1993 notice, they

are adopted in a final rule published elsewhere in this issue. This

separate document also revises Regulations, 29 CFR part 552, to

incorporate changes necessitated by amendments to Title II of the

Social Security Act which were enacted October 22, 1994, as Public Law

103-387 (Social Security Domestic Employment Reform Act).

Based on the comments received to date, the Department wishes to

consider the implications of its proposed revision on situations where

State and local governments provide companion services to the elderly

or infirm, as well as situations where the companion is employed by a

family member. The Department is considering revising the proposal to

allow the exemption to apply to employment, either jointly with a third

party agency or otherwise, by a government agency or family member,

where the government agency or family member is acting on behalf of an

elderly or infirm person who is unable to act on his or her own behalf.

The Department is therefore reopening the comment period in order to

receive additional comments relating to this proposal.

The Department is particularly interested in receiving information

on the companion services provided by State and local governments, and

the relationship between the government and the elderly or infirm

person to whom the service is provided.

Signed at Washington, DC, on this 31st day of August 1995.

Maria Echaveste,

Administrator, Wage and Hour Division.

As a convenience to the readers of this document, the proposed

revisions to Sec. 552.109 which were published in the Federal Register

document of December 30, 1993 (53 FR 69310), are republished as

follows:

PART 552--APPLICATION OF THE FAIR LABOR STANDARDS ACT TO DOMESTIC

SERVICE

7. In Sec. 552.109, paragraphs (a) and (c) are proposed to be

revised to read as follows:

Sec. 552.109 Third party employment.

(a) Employees who are engaged in providing companionship services,

as defined in Sec. 552.6, and who are employed by an employer or agency

other than the family or household using their services, are exempt

from the Act's minimum wage and overtime pay requirements by virtue of

section 13(a)(15), provided that they are also employed by the person

in whose home the services are provided, i.e., a joint employment

relationship must exist (see 29 CFR Part 791). The assignment of such

an employee to more than one household or family in the same workweek

would not defeat the exemption for that workweek, provided that the

services rendered during each assignment come within the definition of

companionship services.

(b) * * *

(c) Live-in domestic service employees who are employed by an

employer or agency other than the family or household using their

services are exempt from the Act's overtime requirements by virtue of

section 13(b)(21), provided that they are also employed by the person

in whose home the services are provided, i.e., a joint employment

relationship must exist. This exemption, however, will not apply where

the employee works only temporarily for any one family or household,

since the employee would not be ``residing'' on the premises of such

family or household.

[FR Doc. 95-22142 Filed 9-7-95; 8:45 am]

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