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FLSA – Home Care Services.

April 30, 2014

The Department of Labor issued an Administrator’s Interpretation addressing how the FLSA applies to home care services provided through shared living arrangements, such as adult foster care and paid roommate situations.  This interpretation seeks to clarify domestic service regulations issued by the DOL last fall.  Specifically, the interpretation focuses on living arrangements in which one or two consumers and a paid provider share a home in order to enable the consumer(s) to remain in a private home living situation.  Whether an employment relationship exists between the consumer and provider, or between the provider and a third-party administering the home-care program, depends on an “economic realities test” that takes into consideration various factors.  With regard to the consumer-provider relationship, these factors include the location of the living arrangement (typically no employment relationship found if living in the provider’s home), and who controls the relationship (whether the consumer provides direction and control regarding his care and needs). As for the provider-third party relationship, factors include the extent of control over the provider’s conditions of employment or the manner in which the provider performs services to the consumer.  If the provider is deemed a non-exempt employee of either the consumer or the third-party under the economic realities test,  then he is covered by the FLSA’s minimum wage, overtime, and timekeeping requirements.