The federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the “FLSA”), and its implementing regulations, 29 C.F.R. §§ 510 et seq., mandate that most workers in the U.S. be paid at least the federal minimum wage of $7.25 per hour for all hours worked and overtime compensation at 1½ times the regular rate of pay for all hours worked in excess of 40 hours in a workweek.
However, the FLSA sets forth exemptions from both minimum wage and overtime pay for domestic service employees employed “to provide companionship services for” the young, elderly, or infirm. See FLSA § 13(a)(15), 29 U.S.C. § 213(a)(15).
So, too, the FLSA carves out an exemption from overtime pay for any employee, employed “in domestic service in a household,” “who resides in that household.” FLSA § 13(b)(21), 29 U.S.C. § 213(b)(21).
In December 2011, the U.S. Department of Labor proposed regulations requiring third-party employers of domestic “companionship” employees, and third-party employers of live-in domestic employees, to pay the minimum wage and overtime compensation to these employees.
The U.S. Department of Labor’s proposed regulations cover, among other third-party employers, staffing agencies which employ home health aides.
The federal regulations under consideration provide that an individual or member of the family or household using the services of a domestic “companionship” employee remains entitled to raise the minimum wage and overtime exemptions under FLSA § 13(a)(15). Proposed 29 C.F.R. § 552.109(a). This is so even if the individual or member of the family or household is considered a joint employer.
Similarly, the proposed federal rules state that an individual or member of the family or household using the services of a live-in domestic employee is still entitled to assert the overtime pay exemption under FLSA § 13(b)(21). Proposed 29 C.F.R. § 552.109(c). This is the case even if the individual or member of the family or household is considered a joint employer.
For 60 days, the U.S. Department of Labor is seeking, from interested parties, written comments on the proposed rules.
The proposed federal regulations would increase, beyond the strictures of New York law, the number of hours in a workweek worked by live-in domestic workers for which such workers are entitled to be paid overtime. Because the proposed federal rules would give rise to a difference between federal law and New York law, the law more beneficial to the worker (that is, federal law) would govern employers in New York.
Specifically, under New York law, most domestic workers are entitled to be paid overtime compensation at a rate that is 1½ times their regular, “straight-time” hourly rate of pay for all time in excess of 40 hours in a payroll week, except that live-in domestic workers are entitled to receive overtime pay for all time in excess of 44 hours in a week. See N.Y. Labor Law §§ 2(16), 170; 12 N.Y.C.R.R. § 142-2-2.
Call the Law Offices of David S. Rich, LLC at (347) 941-0760 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other wage and hour litigation.
About the Author David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a New York Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...Read more