FLSA “Companionship Services” Exemption – Does it apply to CNAs, LPNs, and RNs?

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. However, the Act contains many exemptions.

Many court battles have and will continue to be fought over these exemptions. One that is difficult for Claimants to beat is the so-called “Companionship services” exemption, derived from The Code of Federal Regulations, Title 29, Section 552.6. The section provides as follows:

As used in section 13(a)(15) of the Act, the term companionship services shall 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, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.

According to a United States Department of Labor opinion letter issued on March 17, 2005, the exemption can apply to CNAs, LPNs, and RNs. (In addition, registered nurses may qualify for the minimum wage and overtime pay exemption contained in section 13(a)(1) of FLSA for bona fide professional employees, if all pertinent tests (including payment on a salary basis) discussed in Regulations, 29 CFR 541.300 are met.)

The apparent way to get around the exemption is to prove that the performance of general household work exceeds 20 percent of the total weekly hours worked. In my experience, this is easier said than done. I have spent long hours interviewing potential clients to determine if the facts of their cases put them within the exception to the exemption. Unfortunately, in only a small fraction of the cases have I concluded that the exception applied.

The purpose of the “Companionship services” exemption is to make needed care affordable to the elderly and infirm. The policy is taken seriously, so it will take a clear set of facts for the exception to the exemption to apply. Even though the the spirit of the FLSA is to protect employees, a close call under this exemption will likely go against the employee.

Further reference: Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007). (The United States Supreme Court upheld the “Companionship services” exemption.)

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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