Barkan Meizlish , May 19, 2015
The “companionship services exemption” of the Fair Labor Standards Act (FLSA) exempts certain employees from the overtime and minimum wage requirements in accordance with the FLSA, provided that the two tests are met: (1) the individual must be employed in “domestic service employment,” and (2) the individual must provide companionship services to individuals unable to care for themselves. 29 U.S.C. § 213(b)(15).
The first part of the exemption is a little ambiguous. What exactly is “domestic service employment?” According to the regulations and case law interpreting this exemption, “domestic service employment” simply means employment in a “private home.” See 29 C.F.R. § 552.3; Salyer v. Ohio Bureau of Workers’ Comp., 83 F.3d 784, 789 (6th Cir. 1996). But there is no bright line rule to make this determination, as the definition of “private home” “exists along a continuum.” Bowler v. Deseret Villiage Ass’n, Inc. 922 P.2d 8, 13 (Utah 1996). And because the Sixth Circuit has yet to address a standard set of factors to use as a guide, it looks to factors considered by other federal courts to determine whether a facility or residence at which an employee works constitutes a “private home.”
• Whether the property is owned by the resident’s family, the service provider, or a third party
• Whether the residents in the facility have primary control over their day-to-day activities and decisions, such as choosing who lives in the homes or whether they maintain a set of keys
• Whether maintenance and upkeep of the property is the responsibility of the residents
• The size and layout of the facility, including the number of communal rooms and common areas
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