Application of the Fair Labor Standards Act to Domestic Service

DEPARTMENT OF LABOR <SUBAGY>Wage and Hour Division</SUBAGY> <CFR>29 CFR Part 552</CFR> <RIN>RIN 1235-AA51</RIN> <SUBJECT>Application of the Fair Labor Standards Act to Domestic Service</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Wage and Hour Division, Department of Labor. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In 1974, Congress applied the Fair Labor Standards Act (FLSA) to “domestic service” employees, but exempted employees who provide “companionship services” from the minimum wage and overtime requirements and also exempted live-in domestic service employees from overtime. In 1975, the Department promulgated regulations defining companionship services and permitting third party employers to claim these exemptions. These regulations remained substantially unchanged for nearly 40 years. In 2013, the Department revised the regulations to narrow the definition of companionship services and prevent third party employers from claiming either of the exemptions. Because the Department is concerned that the 2013 regulations might not reflect the best interpretation of the FLSA and might discourage essential companionship services by making these services more expensive, the Department is proposing to return to the 1975 regulations. This summary can be found at <E T="03">https://www.regulations.gov</E> by searching by the RIN: 1235-AA51. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by September 2, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA51, by either of the following methods: • <E T="03">Electronic Comments:</E> Submit comments through the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov.</E> Follow the instructions for submitting comments. • <E T="03">Mail:</E> Address written submissions to: Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210. <E T="03">Instructions:</E> Response to this NPRM is voluntary. The Department requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this NPRM. Commenters submitting file attachments on <E T="03">https://www.regulations.gov</E> are advised that uploading text-recognized documents— <E T="03">i.e.,</E> documents in a native file format or documents which have undergone optical character recognition (OCR)—enable staff at the Department to more easily search and retrieve specific content included in your comment for consideration. Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record and will be posted without change to <E T="03">https://www.regulations.gov.</E> The Department posts comments gathered and submitted by a third-party organization as a group under a single document ID number on <E T="03">https://www.regulations.gov.</E> All comments must be received by 11:59 p.m. ET on September 2, 2025, for consideration in this rulemaking; comments received after the comment period closes will not be considered. The Department strongly recommends that commenters submit their comments electronically via <E T="03">https://www.regulations.gov</E> to ensure timely receipt prior to the close of the comment period. Please submit only one copy of your comments by only one method. <E T="03">Docket:</E> Go to the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> for access to the rulemaking docket, including any background documents and the plain-language summary of the proposed rule of not more than 100 words in length required by the Providing Accountability Through Transparency Act of 2023. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Daniel Navarrete, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Alternative formats are available upon request by calling 1-866-487-9243. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. Questions of interpretation or enforcement of the agency's existing regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's website at <E T="03">https://www.dol.gov/agencies/whd/contact/local-offices</E> for a nationwide listing of WHD district and area offices. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The FLSA requires that most employees in the United States must be paid at least the federal minimum wage (currently $7.25 per hour) for all hours worked and overtime pay at not less than time and one-half the employee's regular rate of pay for all hours worked over 40 hours in a workweek. <SU>1</SU> <FTREF/> The FLSA also requires covered employers to “make, keep, and preserve” certain records regarding employees, <SU>2</SU> <FTREF/> though recordkeeping requirements are relaxed for employees who are exempt from the Act's wage and hour provisions. <SU>3</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> 29 U.S.C. 206(a), 207(a). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See</E> 29 U.S.C. 211(c). </FTNT> <FTNT> <SU>3</SU>   <E T="03">See</E> 29 CFR part 516 Subpart B. </FTNT> Prior to 1974, the FLSA's minimum wage and overtime compensation provisions did not apply to domestic service workers unless those workers were employed by covered enterprises (generally those that had at least a certain annual dollar threshold in business). In 1974, Congress amended the FLSA to extend coverage to all domestic service workers, including those employed by private households or small companies previously not covered by the Act. <SU>4</SU> <FTREF/> At the same time, Congress created FLSA exemptions for two categories of domestic service employees. First, in section 13(a)(15), Congress added an exemption from the Act's minimum wage and overtime compensation requirements for “any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).”  <SU>5</SU> <FTREF/> Second, in section 13(b)(21), Congress added an exemption from the overtime requirement (but not the minimum wage requirement) for “any employee who is employed in domestic service in a household and who resides in such household.”  <SU>6</SU> <FTREF/> Finally, Congress authorized the Department “to prescribe necessary rules, regulations, and orders with regard to the [1974 FLSA Amendments],”  <SU>7</SU> <FTREF/> and specifically instructed the Department to “define and delimit” the terms “domestic service employment” and “companionship services.”  <SU>8</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">See</E> Fair Labor Standards Amendments of 1974, Public Law 93-259 § 7, 88 Stat. 55, 62 (1974). </FTNT> <FTNT> <SU>5</SU>  29 U.S.C. 213(a)(15). </FTNT> <FTNT> <SU>6</SU>  29 U.S.C. 213(b)(21). </FTNT> <FTNT> <SU>7</SU>  Public Law 93-259 § 29(b), 88 Stat. 76. </FTNT> <FTNT> <SU>8</SU>  29 U.S.C. 213(a)(15). </FTNT> In 1975, the Department promulgated regulations applying the FLSA to domestic service employment at 29 CFR part 552, including provisions addressing the companionship and live-in domestic service employee exemptions. <SU>9</SU> <FTREF/> These regulations defined companionship services as “fellowship, care, and protection for a person who . . . cannot care for his or her own needs,” which included “household work related to the person's care such as meal preparation, bed making, washing of clothes, and other similar services” and could include other general household work not exceeding “20 percent of the total weekly hours worked.”  <SU>10</SU> <FTREF/> Additionally, the 1975 regulations permitted third party employers, or employers of home care workers other than the individuals receiving care or their families or households, to claim both the companionship services and live-in domestic service employee exemptions. <SU>11</SU> <FTREF/> <FTNT> <SU>9</SU>   <E T="03">See</E> 40 FR 7404 (Feb. 20, 1975). </FTNT> <FTNT> <SU>10</SU>  40 FR 7405 (codified at 29 CFR 552.6). </FTNT> <FTNT> <SU>11</SU>  40 FR 7407 (codified at 29 CFR 552.109). </FTNT> These regulations remained substantially unchanged for almost 40 years. In 2007, the Supreme Court issued a unanimous decision affirming the validity of the third-party employer provision at 29 CFR 522.109 (1975), holding in relevant part that neither the statute nor the legislative history provides a definitive answer as to whether third-party employers may avail themselves of these exemptions and that the third-party employer regulation fell within the Department's broad scope of delegated rulemaking authority. <SU>12</SU> <FTREF/> <FTNT> <SU>12</SU>   <E T="03">See Long Island Care at Home, LTD.,</E> v. <E T="03">Coke,</E> 551 U.S. 158 (2007). </FTNT> In 2013, the Department published a final rule that revised its companionship services and live-in em ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 76k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━