There have been further developments regarding the U.S. Department of Labor's proposed regulation that would drastically limit the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption.  A collection of our posts relating to these matters can be accessed here.

The comment period for the proposed regulation closed on March 21, but the fight over the exemption continues with the Senate's recent entry into the fray.  A group of 11 Republican senators has introduced S. 3280 to block the proposed regulation.  The "Companionship Exemption Protection Act" would amend the FLSA to preserve the current state of the exemption.

Two of the bill's sponsors, Senators Alexander (R-Tenn.) and Johanns (R-Neb.), argue that the proposed regulation would drive up the cost of in-home care and would force families to institutionalize seniors, thereby straining state Medicaid budgets.  Their proposal is a more-elaborate take on the matter than is the identically-named H.R. 3066, introduced in the House of Representatives last September by Nebraska Republican Lee Terry.  One feature the bills have in common is that each would remove the Secretary of Labor's authority to "define[] and delimit[]" the exemption.

The companionship exemption provides that the FLSA's minimum-wage and overtime requirements do not apply to employees "employed in domestic service employment  to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves . . .."  However, USDOL's proposed regulation would revised the exemption by, among other things, significantly reducing the scope of exempt activities and making the exemption inapplicable to workers employed by third-party staffing agencies.  The most significant practical impact of the proposed regulation would be that far fewer individuals would qualify for the exemption.

As we previously noted, proponents of the effort to narrow the exemption initially sought to do so through legislative action.  However, those efforts subsequently shifted to the regulatory arena, most likely on the basis of political considerations.  Now, the battle appears to have come full circle.

Incidentally, neither of these bills would affect the potential impact of USDOL's proposals upon the FLSA's Section 13(b)(21) overtime exemption applying to "any employee who is employed in domestic service in a household and who resides in such household . . .."

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UPDATE (03/10/12):   The U.S. Labor Department has again extended the deadline for submissions.  Comments must now be received by Wednesday, March 21, 2012.

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The U.S. Labor Department has extended the time for commenting upon the proposed provisions that would essentially spell the end of the federal Fair Labor Standards Act exemptions for companions and live-in domestic-service workers.  The new deadline is March 12, 2012.

This extension was announced over the objections of many who favor the curtailment of these exemptions.  The Paraprofessional Healthcare Institute, one of the groups pushing for the changes, put it this way:  "The companionship exemption [restriction] was included as part of President Obama's 'We Can't Wait' agenda, and we wholeheartedly agree."  According to PHI, the fact that more than 2,000 comments have been submitted already is cause for bringing public input to a close.

It is clear that the expected campaign to generate favorable comments has been underway.  As one example, many submissions say this, with little variation:

Along with [GROUP NAME HERE] and on behalf of home care workers across the country, I am writing in support of the Department of Labor’s proposed rule (RIN) 1235-AA05.  Home care workers provide an invaluable service to our older family members and people living with disabilities, working hard to help them stay in their homes.  The proposed rule, which would provide home care workers with minimum wage and overtime protections, is essential to stabilizing the quality and consistency of care for those who need care and to improving the quality of the jobs of those providing that care.  Enacting the rule takes one step toward ensuring a stable and skilled workforce to meet the growing demand for these services.  Thank you for recognizing the essential service home care workers provide by suggesting this rule.  We urge you enact it as soon as possible.

Perhaps the proponents' sense of urgency has been provoked by the fact that workers and employers who would be adversely affected by the proposed rules appear to have been voicing a counterbalancing opposition in greater numbers as the former deadline approached.

Now that the Labor Department has decided that the proposals can wait a little longer, those who wish to offer substantive arguments against them can take advantage of the additional time.  For instance, they might urge the Labor Department to consider the fact that, while Congress authorized it to "define[] and delimit[]" the companionship exemption, no such authority appears in the FLSA's live-in domestic overtime exemption.  Compare 29 U.S.C. § 213(a)(15) with 29 U.S.C. § 213(b)(21).  Moreover, not so long ago, it was the constitutional role of Congress to "enact" FLSA changes thought to be desirable for public-policy reasons.

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The U.S. Labor Department has officially published the proposed provisions that would drastically limit the federal Fair Labor Standards Act's exemptions for "companionship" workers and live-in domestic employees.  As we have reported, adopting these proposals in their current form will mean that the proportion of such companions and domestic-service workers who are exempt from that law's minimum-wage and/or overtime requirements will be far smaller than it is today.

The deadline for submitting objections or other comments is February 27, 2012.

The Labor Department has been essentially unresponsive to employers' questions about its intentions as it developed these proposals.  However, it is now clear that, all along, officials have been working closely with proponents and other employee-advocacy groups.  A December 20 telephone conference hosted by the Paraprofessional Healthcare Institute revealed that communications with the Secretary of Labor and others at the Labor Department by those who favor the practical elimination of the exemptions have been "intensive."  This extended to an earlier submission of "thousands" of comments urging the kinds of changes that have now been proposed.

PHI favors restricting the exemptions despite the organization's acknowledgement that these revisions could well be "painful"; that they "may force some consumers to pay more, or receive fewer hours of service"; that "some profit margins may indeed become narrower for a while"; and that "some workers will have fewer hours".

The coalition of proponents will be coordinating another round of numerous statements favoring the changes.  Moreover, one teleconference presenter disclosed that the Labor Department will be keeping tabs on how many incoming comments there are, which is likely a hint that officials are inviting reason to characterize support as having been overwhelming.

Indications are that the result might be preordained.  But even if this is so, employers who are against the proposals have all the more reason to submit their objections and recommendations.  Failing to do so could provide fuel for a later argument (such as in any future litigation questioning the authority for and/or attacking the contents of the revisions) that the "regulated community" expressed little disagreement.

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