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In-home companion services may be exempt from minimum wage and overtime pay laws, depending on whether a provider meets Federal Fair Labor Standard Act (FLSA) conditions, and the state in which the organization operates, according to John Gilliland, an attorney practicing in Crestview Hills, KY.
To be considered exempt under the FLSA, companion services must meet five conditions:
1. The services must be companionship personal care for clients who, through age or infirmity, cannot care for themselves.
2. Not more than 20% of the caregiver’s total work week hours can involve general household work.
3. The duties performed may not require RN- or LPN-level training.
4. The services must be provided in a patient’s home.
5. The patient or the patient’s family must jointly employ the caregiver, along with the personal care company.
Usually, providers can meet the joint employment condition by allowing clients to participate in setting the caregiver’s schedule and selecting caregivers. However, many organizations have difficulty substantiating that the caregiver devotes no more than 20% of her time to household work. Providers also trip up by caring for clients who enter assisted living centers, hospitals, or nursing homes, according to Gilliland. Even if an organization meets FLSA standards, its companion services may not be exempt under state law, he cautions.