[Federal Register Volume 60, Number 174 (Friday, September 8, 1995)]
[Proposed Rules]
[Pages 46797-46798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22142]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 552
RIN 1215-AA82
Application of the Fair Labor Standards Act to Domestic Service
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Proposed rule; reopening and extension of comment period.
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SUMMARY: This document reopens and extends the period for filing
written comments on a proposed revision to Sec. 552.109 of Regulations,
29 CFR part 552, which was published in the Federal Register on
December 30, 1993 (58 FR 69310), to clarify the minimum wage and
overtime exemption under the Fair Labor Standards Act (FLSA) for
certain employees of third-party employers who provide domestic
companionship services. The Department is continuing to consider this
particular proposal, and this action is taken in order to obtain
additional comments from interested parties. A separate final rule
published elsewhere in this issue amends 29 CFR part 552 to incorporate
changes necessitated by amendments to Title II of the Social Security
Act, which were enacted October 22, 1994, as Pub. L. 103-387 (Social
Security Domestic Employment Reform Act), and makes other updating and
technical revisions as proposed in the notice of December 30, 1993.
DATES: Comments are due on or before November 7, 1995.
FOR FURTHER INFORMATION CONTACT:
Richard M. Brennan, Acting Director, Division of Policy and Analysis,
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Room S-3506, 200 Constitution Avenue NW.,
Washington, DC 20210, (202) 219-8412. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: The Fair Labor Standards Act of 1938 (52
Stat. 1060, as amended; 29 U.S.C. 201 et seq.), as amended by the Fair
Labor Standards Amendments of 1974 (Pub. L. 93-259, 88 Stat. 55),
extended with certain exceptions the FLSA's minimum wage, overtime pay,
and recordkeeping provisions to domestic service employees whose
compensation for services would constitute wages under section 209(g)
of Title II of the Social Security Act, or who are employed by one or
more employers for more than 8 hours in the aggregate in any workweek.
Section 13(a)(15) of the FLSA provides an exemption from the minimum
wage and overtime pay requirements of the Act for ``employees employed
on a casual basis in domestic service employment to provide babysitting
services,'' and for domestic service employees employed ``to provide
companionship services for individuals who * * * are unable to care for
themselves.'' Section 13(b)(21) provides an overtime exemption for
domestic service employees who reside in the household in which they
are employed. On February 20, 1975, regulations and interpretations
implementing the domestic service employment provisions of the FLSA
were published in the Federal Register (40 FR 7405) at 29 CFR part 552.
The Department published a notice of proposed rulemaking in the
Federal Register on December 30, 1993 (58 FR 69310), inviting public
comments until February 28, 1994, which, among other things, would
revise Sec. 552.109 to clarify that, in order for the exemptions in
FLSA sections 13(a)(15) and 13(b)(21) to apply, employees engaged in
providing companionship services and live-in domestic service employees
who are employed by a third-party employer or agency must also be
``jointly'' employed by the family or household using their services.
In addition, the Department invited public comments on certain updating
and technical changes to 29 CFR part 552.
The Department proposed to revise Sec. 552.109 to provide,
consistent with rulings of the Wage-Hour Administrator, that companions
and live-in domestics employed by third-party employers are eligible
for the exemptions in FLSA sections 13(a)(15) and 13(b)(21) only where
the individuals are also employed by the family or household using
their services. This clarification was considered necessary in order to
make the underlying definition of ``domestic service employees'' (i.e.,
someone who performs services of a household nature ``in or about a
private home * * * of the person by whom he or she is employed * * *'')
at Sec. 552.101 internally consistent with Sec. 552.109, applicable to
domestic service employees who provide ``companionship services.''
A total of 7 comments were received in response to the notice. All
focused their remarks on the proposed revision
[[Page 46798]]
to Sec. 552.109 concerning joint employment and third-party employers.
After review of the comments received to date, the Department has
concluded that it is appropriate to continue the rulemaking on the
proposed revision to Sec. 552.109. With respect to the updating and
technical changes that were proposed in the December 1993 notice, they
are adopted in a final rule published elsewhere in this issue. This
separate document also revises Regulations, 29 CFR part 552, to
incorporate changes necessitated by amendments to Title II of the
Social Security Act which were enacted October 22, 1994, as Public Law
103-387 (Social Security Domestic Employment Reform Act).
Based on the comments received to date, the Department wishes to
consider the implications of its proposed revision on situations where
State and local governments provide companion services to the elderly
or infirm, as well as situations where the companion is employed by a
family member. The Department is considering revising the proposal to
allow the exemption to apply to employment, either jointly with a third
party agency or otherwise, by a government agency or family member,
where the government agency or family member is acting on behalf of an
elderly or infirm person who is unable to act on his or her own behalf.
The Department is therefore reopening the comment period in order to
receive additional comments relating to this proposal.
The Department is particularly interested in receiving information
on the companion services provided by State and local governments, and
the relationship between the government and the elderly or infirm
person to whom the service is provided.
Signed at Washington, DC, on this 31st day of August 1995.
Maria Echaveste,
Administrator, Wage and Hour Division.
As a convenience to the readers of this document, the proposed
revisions to Sec. 552.109 which were published in the Federal Register
document of December 30, 1993 (53 FR 69310), are republished as
follows:
PART 552--APPLICATION OF THE FAIR LABOR STANDARDS ACT TO DOMESTIC
SERVICE
7. In Sec. 552.109, paragraphs (a) and (c) are proposed to be
revised to read as follows:
Sec. 552.109 Third party employment.
(a) Employees who are engaged in providing companionship services,
as defined in Sec. 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), provided that they are also employed by the person
in whose home the services are provided, i.e., a joint employment
relationship must exist (see 29 CFR Part 791). The assignment of such
an employee to more than one household or family in the same workweek
would not defeat the exemption for that workweek, provided that the
services rendered during each assignment come within the definition of
companionship services.
(b) * * *
(c) Live-in domestic service employees who are employed by an
employer or agency other than the family or household using their
services are exempt from the Act's overtime requirements by virtue of
section 13(b)(21), provided that they are also employed by the person
in whose home the services are provided, i.e., a joint employment
relationship must exist. This exemption, however, will not apply where
the employee works only temporarily for any one family or household,
since the employee would not be ``residing'' on the premises of such
family or household.
[FR Doc. 95-22142 Filed 9-7-95; 8:45 am]
BILLING CODE 4510-27-M
