FLSA2002-7 — Companionship services exemption

· DEPARTMENT OF LABOR
ITED STATES OFAMEN

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

August 16, 2002

FLSA2002-7

Dear Name*,

This is in response to your inquiry regarding the "companionship services" exemption provided by Section
13(a)(15) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 213(a)(15). You asked whether employees
engaged in companionship services, as defined in 29 C.F.R. § 552.6, and who are employed by an
employer or agency other than the household using their services, but who are not jointly employed by
such household, are nevertheless considered exempt from minimum wage and overtime requirements
under the FLSA's companionship services exemption.

Your inquiry is based on your review of two prior letters issued by the Wage and Hour Division's Office of
Enforcement Policy, Fair Labor Standards Team, dated January 6, 1999, and May 20, 1999. These two
letters appear to indicate that employees of a third-party employer working as domestic service
employees in private homes may not qualify for the Section 13(a)(15) exemption unless they are jointly
employed by the third party employer and the household where they are employed. You stated that
neither the statute, the interpretive regulations at 29 C.F.R. § 552.109, nor any of the interpretive case
law you reviewed in published court decisions on the scope of the companionship services exemption,
discuss a requirement for joint employment as a prerequisite for this exemption being available to a third
party employer.

As you noted, Section 13(a)(15) of the FLSA provides an exemption from minimum wage and overtime
requirements for:

"[A]ny employee employed in domestic service employment to provide companionship services
for individuals who (because of age or infirmity) are unable to care for themselves ... "

29 U.S.C. § 213(a)(15). Our interpretation of this statutory provision is reflected in the Department of
Labor's interpretive regulation at 29 C.F.R. § 552.109(a), which states:

"Employees who are engaged in providing companionship services, as defined in §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)."

The interpretation of the Section 13(a)(15) exemption reflected in 29 C.F.R. § 552.109(a) has been
upheld by federal courts. See, e.g., Johnston v. Volunteers of America Inc., 213 F. 3d 559, 561-62 (10th
Cir. 2000), and cases cited therein. In Johnston, the court rejected the argument that Section 552.109(a)
is in any way limited by the language in 20 C.F.R. § 552.3, defining domestic service employment. 213
F.3d at 562 ("We hold that the fact that domestic service employees are not employed by the individual
receiving care, does not alone exclude them from the exemption.")

The Department of Labor proposed revising 29 C.F.R. § 552.109 to add a joint employment requirement
in December 1993, and reopened and extended the public comment period on that proposal in
September 1995. No final rule was ever issued in connection with that proposal. On January 19, 2001,
the Department issued additional proposed revisions to these regulations (See 66 FR 5481 (Jan. 19,
2001) and 66 FR 20411 (Apr. 23, 2001)). However, the Department published a notice in the Federal
Register on April 8, 2002, withdrawing the proposed regulations and terminating the rulemaking
proceeding. Enclosed is a copy of the Federal Register notice.

Consequently, Section 552.109 of the regulations has not been revised to add a joint employment
requirement as a condition for companionship services exemption. Thus, under 29 C.F.R. § 552,109(a),
an employee who is engaged in providing companionship services in private homes and who is employed
by a third party employer other than the family or household receiving the worker's services is exempt

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· DEPARTMENT OF LABOR
TED STATES OFAM

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

from the minimum wage and overtime requirements under Section 13(a)(15) of the Fair Labor Standards
Act. All prior opinions issued by this agency expressing a contrary view, including those of January 6,
1999, and May 20, 1999, are hereby rescinded and withdrawn.

Sincerely,
Tammy D. Mccutchen
Administrator
Enclosure
Note: * The actual name(s) was removed to preserve privacy.

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