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In an announcement that has long been awaited by workers advocates and those in the home health industry as well, today the United States Department of Labor (DOL) announced a final rule, to go into effect on January 1, 2015, which extends the FLSA’s minimum wage and overtime protections to home health aides that perform typical CNA tasks in the homes of the aged and infirm. In an email blast, the DOL reported:
The U.S. Department of Labor’s Wage and Hour Division announced a final rule today extending the Fair Labor Standards Act’s minimum wage and overtime protections to most of the nation’s direct care workers who provide essential home care assistance to elderly people and people with illnesses, injuries, or disabilities. This change, effective January 1, 2015, ensures that nearly two million workers – such as home health aides, personal care aides, and certified nursing assistants – will have the same basic protections already provided to most U.S. workers. It will help ensure that individuals and families who rely on the assistance of direct care workers have access to consistent and high quality care from a stable and increasingly professional workforce.
Among other things, the final rule overrules the 2007 holding of the Supreme Court in Long Island Care at Home, Ltd. v. Coke, and requires 3rd party employers such as staffing agencies to pay companions and home health workers overtime under the FLSA when they work in excess of 40 hours per week.
The New York Times provides a pretty good synopsis of the changes to the Companionship Exemption, provided by the final rule:
Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” — defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance — are limited to the individual, family or household using the services.
If an aide or companion provides “care” that exceeds 20 percent of the total hours she works each week, then the worker is to receive minimum wage and overtime protections.
The new rule defines care as assisting with the activities of daily living, like dressing, grooming, feeding or bathing, and assisting with “instrumental activities of daily living,” like meal preparation, driving, light housework, managing finances and assisting with the physical taking of medications.
The companionship exemption will not apply if the aide or companion provides medically related services that are typically performed by trained personnel, like nurses or certified nursing assistants.
Live-in domestic service workers who reside in the employer’s home and are employed by an individual, family or household are exempt from overtime pay, although they must be paid at least the federal minimum wage for all hours worked.
DOL to Issue Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations
The DOL announced yesterday that it would be issuing proposed amended rules regarding companionship and live-in workers’ eligibility for overtime under the FLSA. A preview of the announcement from the DOL’s website explains:
“While Congress expanded protections to “domestic service” workers in 1974, these Amendments also created a limited exemption from both the minimum wage and overtime pay requirements of the Act for casual babysitters and companions for the aged and infirm, and created an exemption from the overtime pay requirement only for live-in domestic workers.
Although the regulations governing exemptions have been substantially unchanged since they were promulgated in 1975, the in-home care industry has undergone a dramatic transformation. There has been a growing demand for long-term in-home care, and as a result the in-home care services industry has grown substantially. However, the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care. Moreover, the workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. In view of these changes, the Department believes it is appropriate to reconsider whether the scope of the regulations are now too broad and not in harmony with Congressional intent.
Proposed Changes to the Companionship and Live-In Worker Regulations
On December 15, 2011 the Department announced that it will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes:
- To more clearly define the tasks that may be performed by an exempt companion
- To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.
Although the Office of Management and Budget (OMB) has reviewed and approved the attached Notice of Proposed Rulemaking (NPRM), the document has not yet been published in the Federal Register. The NPRM that appears in the Federal Register will specify the dates of the public comment period and may contain minor formatting differences in accordance with Office of the Federal Register publication requirements. The OMB-approved version is being provided as a convenience to the public and this website will be updated with the Federal Register’s published version when it becomes available.”
Among other things, the proposed rule would overrule the 2007 holding of the Supreme Court in Long Island Care at Home, Ltd. v. Coke, and require 3rd party employers such as staffing agencies to pay companions and home health workers overtime under the FLSA when they work in excess of 40 hours per week.
Click Notice of Proposed Rulemaking to read more.
Direct Care Job Quality Improvement Act Would Amend the FLSA to Include Basic Labor Protections for Home Care Workers
The Direct Care Job Quality Improvement Act [S. 1273/H.R. 2341] – a bill that would help create a more stable, valued direct care workforce was introduced on 6/23/2011, by Rep. Linda Sanchez (D-CA) and Sen. Robert P. Casey, Jr. (D-PA). Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor and Pensions committee and Sen. Bernie Sanders (I-VT) were also original co-sponsors of the Senate bill. The House bill had twenty-one original co-sponsors. This legislation takes major steps towards ensuring the health, autonomy and well-being of more than 13 million Americans with long-term care needs today and an estimated 27 million by 2050.
The Direct Care Job Quality Improvement Act would amend the Fair Labor Standards Act (FLSA) to include basic labor protections for home care workers. Currently, FLSA covers domestic service workers and most direct care workers in institutional settings such as nursing homes; however, the law continues to exclude home care workers from basic minimum wage and overtime protections.
In addition to extending wage and overtime protections for home care workers, The Direct Care Job Quality Improvement Act would:
- Establish data collection and reporting requirements to monitor important workforce indicators such as size, compensation levels, turnover rates and vacancies.
- Improve the recruitment and retention of direct care workers by providing grants to states to expand and support efforts aimed at recruiting, training and retaining an adequate supply of direct care workers.
To read more about the proposed legislation click here.
M.D.Fla.: Court Defines “General Household Work” And Denies Defendant’s Motion For Summary Judgment Regarding Companionship Exemption; Defendant’s Proposed Broad Reading Of The Exemption Rejected
Anglin v. Maxim Healthcare Services, Inc.
This case was before the Court on Defendant’s Motion for Summary Judgment. Defendant argued that Plaintiff was exempt from overtime under the FLSA’s companionship exemption and was not entitled to overtime compensation under the FLSA. The Plaintiff argued that because she spent more than 20% of her time performing general housework and other work unrelated to patient treatment, she fell outside the exemption and should be paid at an overtime rate for all hours over 40 in a workweek. In denying Defendant’s Motion, the Court also clarified the type(s) of work that qualify for allocation towards the 20% “general household work” versus the work that should be allocated to the 80% companionship work.
The Court explained, “[i]n this case, Maxim argues that the FLSA’s healthcare companion exemption applies to Plaintiff’s employment, precluding her entitlement to overtime. See 29 U.S.C. § 213. The Fair Labor Standards Act (“FLSA”) mandates that “no employer shall employ any of her employees … for a workweek longer than forty hours unless such employee receives compensation for her employment in excess of the hours … specified at a rate not less than one and one-half times the regular rate at which she is employed.” 29 U .S.C. § 207(a)(1); Reich v. Department of Conservation and Natural Resources, 28 F.3d 1076, 1081 (11th Cir.1994). The term “employ” is defined as “to suffer or permit to work.” 29 U.S.C. § 203(g). To “suffer or permit to work” an employer must have knowledge of the work being performed. Fox v. Summit King Mines, 143 F. 926, 932 (9th Cir.1944). The FLSA mandates that employees, in general, receive one and one-half times their regular rate of pay for all hours worked in excess of forty per week. Armitage v. Dolphin Plumbing & Mechanical, LLC, 510 F.Supp.2d 763, 768-69 (M.D.Fla.2007) (citing 29 U.S.C. § 207(a)(1)).
In 1974, Congress amended the Fair Labor Standards Act to include many “domestic service” employees not previously subject to its minimum wage and maximum hour requirements. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S.Ct. 2339, 2344 (2007) (citing Fair Labor Standards Amendments of 1974). Congress simultaneously created an exemption that excluded from FLSA coverage certain subsets of employees “employed in domestic service employment,” including companionship workers Id. (citing 29 U.S .C. § 213(a)(15)).
Federal law exempts from the overtime provisions “employee[s] 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 [of Labor] ).” 29 U.S.C. § 213(a)(15). The Department of Labor defines “companionship services” as:
[T]hose services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work. Provided, however, [t]hat such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term “companionship services” does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse.29 C.F.R. § 552.6. “The companion must perform the services with respect to the aged or infirm persons and not generally to other persons.” 29 C.F.R. § 552.106. The Eleventh Circuit has recognized that Department of Labor regulations promulgated under the FLSA as controlling authority. Buckner v. Florida Habilitation Network, 489 F.3d 1151, 1154 (11th Cir.2007).
Like all exemptions under the FLSA, the companionship exemption must be “narrowly construed.” Buckner, 489 F.3d at 1154 (citing Mitchell v. Ky. Fin. Co., 359 U.S. 290, 295 (1959)). The Act should be interpreted liberally in the employee’s favor and the defendant must prove applicability of an exemption by “clear and affirmative evidence.” Birdwell v. City of Gadsden, 970 F.2d 802 (11th Cir.1992) (internal citations omitted). The employer has the burden of showing that it is entitled to the exemption. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). The exemption applies even though Plaintiff is employed by a service agency, rather than directly by the patient or his family. Long Island Care, 127 S.Ct. at 2344.
The healthcare companionship exemption allows for general household work as long as the general household work is “incidental” or does not exceed 20% of the total weekly hours. Aside from the vague description in the FLSA regulations-work provided for the “benefit of the entire household rather than for the care of the patient”-no precise definition of “general household work” is provided by the act, the department’s regulation, or Eleventh Circuit case law. 29 C.F.R. § 552.106.”
Turning to a definition of the term “general household work,” the Court stated:
“Plaintiff relies on the Utah Supreme Court’s opinion in Bowler v. Deseret Village Association, Inc., 922 P.2d 8 (1996). In Bowler, the court found that activities including “general maintenance services, including cleaning laundry areas, general household cleaning (through use of mop, duster, and vacuum), washing vehicles, cleaning the garage, and maintaining the yards and grounds,” while providing service to the residents receiving companionship services, also provided service to the entire community; therefore, these activities were properly classified as general household work and counted against the 20% threshold. Id. at 15. Plaintiff argues based on the holding in Bowler that the activities must solely benefit the patient/client, to the exclusion of other household members, or they are characterized as general household work.
Other courts considering the type of work that a CNA performs have held that their typical work falls within the healthcare companion exception. See, e.g., Salyer v. Ohio Bureau of Workers’ Compensation, 83 F.3d 784, 787 (6th Cir.1996) (woman who gave medication and helped disabled dress, bathe, ambulate, and clean provided “companionship services” under FLSA); Cox v. Acme Health Services, Inc., 55 F.3d 1304, 1306 (7th Cir.1995) (CNA who performed therapy and nursing services, personal care, ambulation, exercise, household services, and medication assistance performed “companionship services” within the exemption); McCune v. Oregon Senior Services Div., 894 F.2d 1107, 1111 (9th Cir.1990) (CNAs who performed cleaning, cooking, hygiene and medical care held to perform “companionship services” under FLSA). The court in McCune considered what kind of work qualified as general housework and distinguished between services related to patient care and other household work: “Dusting or cleaning either [the bedroom or living] room appears to be routine, general household work, rather than work related to the individual. Cleaning a spill by the client in either room, by contrast, would be non-routine care more related to the individual than to the general household, and would not be included in the twenty percent figure.” 894 F.2d at 1111.
It is undisputed that 90% of Plaintiff s shifts were dedicated to the care of two Maxim patients, Angela Houston and Clyde Mallory. Doc. No. 32 at 5 n. 5. Plaintiff admitted during her testimony that she spent her time caring directly for these patients by: bathing them, preparing meals for then, feeding them, grocery shopping, assisting them with prescribed medication needs, cleaning for them, changing their bedding, transporting them, and washing their clothes. Doc. No. 32-3 (Anglin Dep. at 84-85).
Maxim cites to a Statement of Facts “(SOF 2, 3, 5-6, 12)” as if it is a separate document, and no such document is in the Record. See Doc. No. 32 at 10. If Maxim is referring to various pages within its Motion for Summary Judgment as the “Statement of Facts,” the cites refer to pages throughout the document including pages containing argument, and such a practice would be extremely confusing. A statement of facts generally is a stand-alone document which contains sequential paragraphs to which the Court and opposing counsel can easily refer. That is not the case here, and portions of Maxim’s argument are not supported with citation to evidence in the record to support its points. Plaintiff also noted the lack of a traditional statement of facts that would have been much easier to use. Doc. No. 42 at 2 n. 2.
However, Plaintiff argues that she additionally “regularly spent” more than 20% of her time each week performing general household work, and other work unrelated to the care of Defendant’s patients, at the patient’s homes.” Doc. No. 42 at 4 (citing Anglin Dep. at 191, 204, 223). Plaintiff characterized the type of work she did as that of a “maid” or “housekeeper” to the entire household when serving as a companion to patients Clyde Mallory and Angela Houston. Doc. No. 42-2 (Anglin Dep. at 170-71). Plaintiff testified that when there was some “downtime,” when she was not required to perform duties for patients, Plaintiff would perform tasks for others in the household, including: daily laundry; daily cooking; daily washing dishes; the heavy cleaning (dusting/vacuuming/mopping) of the patient’s entire house 2-3 times per week, including those portions which the patient never frequented; taking patient’s family members to the (non-patient) family member’s doctor’s appointments; shopping for the entire household, including separate lists in many cases for non-patient members of the household one to two times per week; daily making the bed of everyone in the patient’s household; changing the linens on the bed of everyone in the patient’s household; taking out the entire household’s trash out one to two times per week; painting portions of a patient’s home; and feeding and cleaning up after the household pets. Doc. No. 42-2 (Anglin Dep. at 68, 79, 82, 90-91, 93, 96, 121, 123, 129, 177-78, 180-81, 183, 185-87, 195, 197-99, 201-03, 205-12, 216-217, 219-221, 233, 239, 252, 255, 273, 342, 374-75).
Both of Plaintiff’s two main patients lived with elderly parents, which, she testified, created situations in which Plaintiff had to do work for more than just the patients. For one of the patients, Angela Houston (with Down’s syndrome and Cerebral Palsy), whose mother was seventy-seven years old and very sick, Plaintiff was not just taking care of Angela, but also her mother Joanne Gibson/Houston too. Doc. No. 42-2 (Anglin Dep. at 69, 206). When Angela’s mother was in the hospital for one month, Plaintiff stayed with Angela around the clock, but did not get paid for the hours from midnight until 8:00 a.m. because Angela was a Medicaid case and Medicaid did not pay for a companion to stay overnight. Doc. No. 42-2 (Anglin Dep. at 69, 121). The other patient, Clyde Mallory (a paraplegic requiring round the clock care), lived with his father who was 97 years old and “would mess up everything.” Doc. No. 42-2 (Anglin Dep. at 202). Clyde Mallory would make frequent reports to the Maxim office-“all kinds of reports, one right after another” complaining about the “house not being kept up by the other CNAs that worked there.” Doc. No. 42-2 (Anglin Dep. at 233). Maxim submitted the affidavit of Mallory which described Plaintiff as a hard worker who did a “very good job” and occasionally vacuumed the house, cleaned the kitchen, and help and cook for his father in the kitchen; however, Mallory’s opinion was that Plaintiff did not spend 20% of her time on tasks “unrelated to his care.” Doc. No. 32-6 (Mallory Aff.). There is a genuine issue of material fact as the to amount of household work Plaintiff performed for other than the infirm individuals for whom she cared.
Maxim argues that Plaintiff’s list of tasks is contradicted by her affirmative answer to the leading question, “So 100% of the time you were working for Maxim, you [were] doing things in order to provide care for the patients, right?” Doc. No. 32 at 6 (citing Anglin Dep. at 84-85). The precise nature of the work that Plaintiff did to “provide care for the patients” or others in the household is at the very heart of this FLSA dispute, and Plaintiff’s very general affirmative answer does not foreclose her subsequent more specific explanation that she performed other household work for patient’s family members because she had specific instructions from her supervisors, to do “whatever” required to make Maxim’s patients happy. Doc. No. 42-2 (Anglin Dep. at 97, 104, 124, 276).
Although Plaintiff testified as to the estimated time she devoted to the tasks for other family members, Maxim in excruciating detail lists its calculation of the total time that Plaintiff estimated in order to make her testimony appear overstated. See Doc. No. 32 at 17-18. Notably, Maxim’s supplies no evidence from Plaintiff’s supervisors, i.e., the Registered Nurses, that Plaintiff did not perform the general household work that she alleges; Maxim supplies only Plaintiffs job description and a general affidavit from Maxim’s account manager, Melissa White. Doc. No. 32-2.
Maxim’s other argument is, that even if Plaintiff performed household work for patients’ family members and directly for patient-care, the other individuals, Mallory Sr. and Angela’s mother, were also infirm and the companionship exemption would have applied to them regardless of whether Plaintiff was paid extra for her services. That argument really cuts the other way, in that if Maxim admits there were other members of patients’ households too infirm to do the housework, her testimony that she was the only one performing the housework and pet care for the household is more credible. Moreover, it is the type of work performed for other than a patient, and not the health of the additional family members receiving household work services, that determines whether the 20% threshold of general household work has been reached.
Maxim appears to argue that any of the tasks related to the patients’ family members, such as vacuuming, sweeping, or mopping in other family member’s part of the houses still were provided for the patient’s direct care because such things were necessary to “maintain the sterile environment for the patients.” Taken to the extreme, Maxim’s definition of “sterile environment” would include every type of household work and pet care, and that is clearly not the intent of the regulation.”
After discussing the “general household duties” test, the Court went on to discuss the concept of volunteering versus work under the FLSA:
“Maxim also contends that Plaintiff changed her deposition testimony after initially stating that she “volunteered” to stay with “the mother of one of Maxim’s patients when she fell gravely ill.” Doc. No. 32 at 5 (citing Anglin Dep. 68-70). That is not Plaintiffs testimony. Plaintiff testified that because she felt close to the family and “there was nobody” else, Plaintiff “voluntarily” stayed with the patient while the patient’s mother was in the hospital. Doc. No. 42-2 (Anglin Dep. at 70). Maxim contends that Plaintiff performed the extra nine hours as a “volunteer” and is not entitled to be paid for those hours as a matter of law.
As to whether Plaintiff’s staying with Angela twenty-four hours nine more than she was paid for was employment or “volunteer” time, the FLSA provides a very general definition to “employ.” It defines “to employ” as expansively as to “suffer or permit to work.” 29 U.S.C. § 203(g). The FLSA does not define “work.” 29 C.F.R. § 785.6. However, time spent doing work not requested by the employer, but permitted, is generally considered work time, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefitting from the work being done. See Reich v. Department of Conservation and Natural Resources, State of Alabama, 28 F.3d 1076, 1082 (11th Cir.1994) (citing 29 C.F.R. § 785.11). The FLSA places the duty on management to exercise control and see that work is not performed if the employer does not want it performed; an employer cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Id.
In this case, Maxim’s use of the term “volunteer” and Plaintiff’s statement that she “voluntarily” watched Angela for an extra nine hours are not equivalent use of the terms because, as Plaintiff points out, Maxim’s rules prohibited Plaintiff from leaving Angela’s home without being relieved by another caregiver. Doc. No. 42-4 (White Dep. at 89-90); Doc. No. 41-5 (Morgan Dep. at 49, 55, 57, 59). If Plaintiff had left Angela, despite the fact that there was no other caregiver to relieve her, Maxim would have deemed it “abandonment” of the patient and Plaintiff would have been subject to discipline by Maxim, for failing to follow Maxim’s policies, rules and procedures. Doc. No. 41-5 (Morgan Dep. at 49, 59, 60-61). Maxim did not send anyone to relieve Plaintiff during this one month period. Doc. No. 42-2 (Anglin Dep. at 114). Instead, Melissa White, Anglin’s supervisor, told her not to record the extra nine hours per day, because Maxim would not be paying her for it and she would be “volunteering” her time, since Maxim was not getting paid for it. Doc. No. 42-2 (Anglin Dep. at 225-228). Maxim was clearly aware of the situation because the company requested that Medicaid provide authorization for more CNA hours-for the most time possible-so it would be reimbursed for more of Plaintiff’s work. Doc. No. 42-4 (White Dep. at 80-84, 91).
Maxim argues that Plaintiff’s decision “not to sit idle and while away the day … waiting for another patient need to arise while she was at rest” led her to “voluntarily” engage in other tasks at the same time she was acting as a companion for the infirm individual. Doc. No. 32 at 25. Maxim’s final argument is that Plaintiff spent time “multitasking,” simultaneously performing exempt functions with non-exempt functions, and the non-exempt time should not be counted toward an exception to the exemption. Doc. No. 32 at 24. In support, Maxim cites inapposite cases that considering the management exemption, not the healthcare companion exemption, which on its faces says nothing about not counting time spent “multitasking.” To the contrary, the plain language of the regulations mandate that in calculating “general household work,” the Court confirm such work “does not exceed 20 percent of the total weekly hours worked” and is “not generally” performed for “other persons.” 29 C.F.R. § 552.6; 29 C.F.R. § 552.106. The regulations say nothing about carving out the “multi-tasked” work performed by the companion. Moreover, such an interpretation would not be construing the Act “liberally in the employee’s favor” and would certainly reduce an employer’s burden to prove “applicability of an exemption by clear and affirmative evidence.” See Birdwell v. City of Gadsden, 970 F.2d 802 (11th Cir.1992). Maxim’s remaining arguments relate to Plaintiff’s credibility, which are decisions left to the finder of fact.
Based on the evidence presented by Plaintiff, there are genuine issues of material fact as to the amount and extent of the general household tasks performed by Plaintiff; thus, Maxim has failed to establish as a matter of law that Plaintiff qualified under the healthcare companion exemption.”
According to a press release, Senator Tom Harkin and 14 other U.S. senators have sent a letter to the DOL urging the Secretary of Labor, Hilda Solis, to “use its broad authority to interpret the Fair Labor Standards Act (FLSA) to extend wage and hour laws to home health care workers.
Though most domestic workers are covered under FLSA, an exemption to that law has been interpreted by the DOL to exclude home care workers. Today marks the two-year anniversary of a Supreme Court ruling that upheld the Department’s interpretation, making clear that the Department has broad authority to interpret FLSA.
In the three decades since the exemption was created, the numbers of home care workers and their responsibilities have expanded dramatically as the population has aged and more and more people are choosing long-term care services in their homes rather than in institutions. Home care, increasingly, has become not casual work performed by a friend or family member but a full-time regular type of employment,” wrote the lawmakers. “It is critical that these professional workers, who provide essential services to our nation’s elderly and disabled, have the same right to minimum wage and overtime pay as enjoyed by other workers.”
To read the full text of the letter from the senators, go to IOWAPOLITICS.com.