Minimum Wage and Overtime Requirements for Domestic Employers                            

In June 2007, the United States Supreme Court ruled that the US Department of Labor’s (DOL) regulation exempting employers of home care companions from both the minimum wage and the overtime (OT) requirements of the federal Fair Labor Standards Act (FLSA) is a permissible interpretation of the FLSA.[1]

This decision, however, will have little impact on employers of home care companions in New Jersey and New York because the wage-hour laws in those two states are more stringent and require that home care companions be paid at least the minimum wage and OT.  (As will be explained below, there is a slight twist under New York law regarding OT.) 

 In Connecticut, the Connecticut Department of Labor follows the federal rules when it comes to the minimum wage and overtime requirements applicable to domestic service employment.

 As a general rule, in the area of wage-hour law, when federal and state laws differ, the law that is most employee-friendly applies.

 This article outlines the applicable wage-hour rules relating to the payment of the minimum wage and OT to home care companions under federal, Connecticut, New Jersey, and New York laws.  It reflects the state of the law as of July 2007.

 Federal Law

 Section 13(a)(15) of the FLSA exempts from the statute’s minimum wage and maximum hours rules

any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee 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 de-limited by regulations of the Secretary [of Labor]).[2] 

 The DOL regulations state that

the term domestic service employment refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use. It also includes babysitters employed on other than a casual basis. This listing is illustrative and not exhaustive.[3]

The DOL further defines the term “companionship services” for the aged or infirm to mean

those 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, That 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. While such trained personnel do not qualify as companions
[under FLSA §13(a)(15)], this fact does not remove them from the category of covered domestic service employees when employed in or about a private household [who might otherwise be exempt from OT pay, but not minimum wage requirements, under FLSA §13(b)(21) (live-in domestic services employees)].^[4]

The DOL has interpreted FLSA §13(a)(15) to extend to companionship workers including those “who are employed by an employer or agency other than the family or household using their services”.[5]  It is this interpretation that the Supreme Court upheld in the Long Island Care case.

The DOL has extensive regulations dealing with domestic service employment, including provisions defining and limiting the terms “babysitting services” and “companionship services”.[6]  

As hinted at above, there is a second FLSA exemption, relating just to OT, for live-in domestic services employees.  See FLSA §13(b)(21) and DOL regulations there under.[7] 

Connecticut Law

There is no law or regulation in Connecticut that expressly exempts workers in domestic service employment from entitlement to receive at least the minimum wage and OT.  Nonetheless, the Connecticut Department of Labor follows the federal minimum wage and overtime exemptions for such workers, based on its reading of the definition of “employee” in the Connecticut wage-hour law.[8]

New Jersey Law

New Jersey does NOT have a home care companion exemption from an employer’s obligation to pay the minimum wage and OT.  Thus, such workers are entitled to at least the minimum wage and 1 ½ times the employees’ regular hourly wage for OT hours in New Jersey.

New York Law

In the case of home care companions, New York follows the FLSA overtime exemptions, but with a twist. In New York, OT hours must be paid at no less than 1 ½ times the NY state minimum wage.  The OT hours don’t have to be paid at the usual 1 ½ times the employee’s regular hourly wage if that rate is higher than the minimum wage.[9] 

Home care companions are NOT exempt from New York’s minimum wage requirements.   

Updated:  October  2007

[1]Long Island Care at Home Ltd. v. Coke, U.S., No. 06-593 (June 11, 2007), available at http://www.supremecourtus.gov/opinions/06pdf/06-593.pdf.   

[2] FLSA §13(a)(15), 29 USC §213(a)(15) (emphasis added), available at http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000213----000-.html.  

[3] 29 CFR §552.3 (emphasis added), available at http://www.dol.gov/dol/allcfr/Title_29/Part_552/29CFR552.3.htm.  

[4] 29 CFR §552.6 (formatting added), available at http://www.dol.gov/dol/allcfr/Title_29/Part_552/29CFR552.6.htm.

[5] 29 CFR §552.109(a), available at http://www.dol.gov/dol/allcfr/Title_29/Part_552/29CFR552.109.htm. 

[6] See http://www.dol.gov/dol/allcfr/Title_29/Part_552/toc.htm.

[7] FLSA §13(b)(21), 29 USC §213(b)(21) (“any employee who is employed in domestic service in a household and who resides in such household”), available at http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000213----000-.html; and 29 CFR 552.102, available at http://www.dol.gov/dol/allcfr/Title_29/Part_552/29CFR552.102.htm.

[8]  See Conn. Gen. Stat. §31-58(f), available at http://www.cga.ct.gov/2007/pub/Chap558.htm#Sec31-58.htm.

[9] See NY Minimum Wage Order for Miscellaneous Industries and Occupations DOL, §142-2.2 (July 2005), available at http://www.labor.state.ny.us/formsdocs/wp/PART142s.pdf.