[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