I 112th CONGRESS 2d Session H. R. 5969 IN THE HOUSE OF REPRESENTATIVES June 19, 2012 Mr. Walberg (for himself, Mr. Terry, Mr. Goodlatte, Mr. Rokita, Mr. Gowdy, and Mrs. Schmidt) introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To preserve the companionship services exemption for minimum wage and overtime pay under the Fair Labor Standards Act of 1938.

1.

Short title

This Act may be cited as the Ensuring Access to Affordable and Quality Companion Care Act.

2.

Definitions

Section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203) is amended by adding at the end the following: (z)(1)Except as provided in paragraph (2), companionship services as used in section 13(a)(15), means those services which provide fellowship, care, and protection for individuals who, because of advanced age or physical or mental infirmity, are unable to care for themselves, including but not limited to, non-medical in-home personal care or household work related to the care of the aged or infirm individuals (such as meal preparation, bed making, washing of clothes, errands, assistance to appointments, laundry, medication reminders, bathing, assistance with incontinence and grooming, and other similar services). Such term may also include the performance of general household work, provided that such work is incidental. (2)Companionship services shall not include services relating to the care and protection of the aged or infirm which require and are performed by trained medical personnel, such as a registered or practical nurse. (aa)Domestic service employment as used in section 13(a)(15), means services of a household nature performed by an employee in or about a private home (permanent or temporary), including but not limited to, employees such as cooks, waiters, butlers, valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, gardeners, home care aides, home health aides, personal care aides, chauffeurs of automobiles for family use, and babysitters employed on other than a casual basis. (bb)Third-party employment as used in section 13(a)(15), means employees who are engaged in providing companionship services and who are employed by an employer or agency other than the family or household using their services, whether or not such an employee is assigned to more than one household or family in the same workweek to provide companionship services. .

3.

Preservation of the companionship services exemption

Paragraph (15) of section 13(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(15)) is amended— (1)by inserting (including through third-party employment) after companionship services; and (2)by striking (as such terms are defined and delimited by regulations of the Secretary).

4.

Preservation of the live-in domestic services exemption

Paragraph (21) of section 13(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(b)(21)) is amended by inserting (including through third-party employment) after domestic service.