At the law office of Donelon, P.C., in Missouri, we understand that some of the exemptions under the Fair Labor Standards Act can be confusing. If you provide care for an elderly or disabled person, you may have some questions about how your employers should pay you, and whether you may qualify for overtime.
The U.S. Department of Labor explains the rule for the companionship services exemption.
Say the person you care for needs you there to help with daily living activities. She can bathe and dress herself, but you fix her meals for her, make sure she takes her medication and arrange for her health care needs. These activities all count as “care,” as well as those involving transferring, toileting, feeding and grooming, if she needed those, too. Care is considered a companionship service.
When you are not providing care, you remain with her, keeping her company. The two of you talk and play games, and you take her to her book club, to her doctor appointments and to the store. You are also there in case of an emergency, such as a fall or medical event. These activities are known as fellowship and protection, and they also fall under companionship.
Activities excluded from companionship services
A daughter comes and stays at the home for a week or two at a time, and when she does, you also fix her meals, clean up after her and do her laundry. These domestic services and others that you perform for her, or anyone else other than the person you are hired to care for, are not companionship services.
Any services that typically require some level of medical training, including physical therapy, treating bruises and pressure sores, and tube feeding, are also not companionship services.
How these affect your pay
If you only provide fellowship and protection, you are exempt from the FLSA wage and hour laws. You may also be exempt if you provide care, as long as those activities take up less than 20 percent of your time at work.
If you perform any services that are not fellowship, protection or care, you are no longer exempt, even if those services make up a small portion of your duties. Your employer must pay you at least minimum wage, and any hours over 40 during the workweek must be compensated by 1.5 times your regular pay rate.
If you work for a third-party employer, that company cannot claim the exemption and must pay you minimum wage and overtime. If the individual also pays you, then the companionship service exemption may apply for that second source of income.
More information about minimum wage and overtime is available on our webpage.